Cases No: 9902534Y2 and 9902639Y2

Neutral Citation No: [2002] EWCA Crim 2345 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM
His Honour Judge Machin
AND ON APPEAL FROM THE CROWN COURT AT LEICESTER
His Honour Judge Mayor QC

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 1 November 2002

Before :

LORD JUSTICE CLARKE
MR JUSTICE PITCHFORD
and 
HIS HONOUR JUDGE FABYAN EVANS
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	REGINA   	Respondent	
	
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	SHOKAT CHENIA	Appellant	
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Robin Spencer QC and Charles Benson (instructed by Attridges) for the Appellant
Patrick Upward QC and Andrew Wheeler (instructed by the Crown Prosecution Service) 
for the Respondent

Hearing dates : 8, 9 and 10 October 2002
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JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

Lord Justice Clarke:
Introduction
1.	This is the judgment of the court.  There are before the court appeals by the same appellant, Shokat Chenia, against his convictions in two entirely different trials.  The first trial (‘the fraud trial’), which was a retrial, took place at the Crown Court at Nottingham before His Honour Judge Machin and a jury between about 30 October and 17 November 1998.  The second trial (‘the drugs trial’) took place at the Crown Court at Leicester before His Honour Judge Mayor QC and a jury between about 23 February and 1 April 1999.  
2.	At the end of the fraud trial, on 17 November 1988, the appellant was convicted of two counts of conspiracy to defraud and one count of managing a company while being disqualified from doing so.  On 4 December 1998 he was sentenced to 6½ years imprisonment concurrent on each of the conspiracy counts and 18 months imprisonment consecutive on the disqualification count, making a total of 8 years in all.  The judge also made a recommendation for deportation and disqualified him from managing a company for 10 years.  There had been five co-accused, to whom we shall refer so far as necessary below, but only the appellant was tried at the retrial. 
3.	At the end of the drugs trial, on 1 April 1999, the appellant was convicted and sentenced as follows.  He was convicted on six counts in the indictment.  On count 3 he was convicted of conspiracy to supply heroin and sentenced to 12 years imprisonment consecutive to the sentences imposed after the fraud trial.  All the other sentences were ordered to run concurrently with the sentence on count 3.  He was convicted of one further count of conspiracy to supply a class A drug (count 4), this time cocaine, for which he received 12 years.  He was convicted of three counts alleging conspiracy to supply class B drugs.  On count 1 he was convicted of conspiracy to supply amphetamine and sentenced to 4 years imprisonment.  Counts 8 and 10 each alleged conspiracy to supply cannabis resin.  There were two counts because count 10 covered a particular transaction relating to about 89.3 kilograms.  The appellant was sentenced to 8 years imprisonment on each of those counts.  Finally, on count 5 he was convicted of possession of a further class A drug (MDMA) with intent to supply and was sentenced to 12 years imprisonment.  
4.	The appellant was thus sentenced to a total of 20 years imprisonment, 8 years as a result of the fraud trial and 12 years as a result of the drugs trial.  After the fraud trial, the appellant did not seek leave to appeal in time against either his conviction or sentence, although he subsequently did so out of time.  His applications were refused by the single judge, Klevan J.  After the drugs trial the appellant also sought leave to appeal against his conviction and sentence.  Those applications were also refused by Klevan J.  However, all the applications were renewed to the full court and on 19 December 2000 the full court (Henry LJ, Douglas Brown J and His Honour Judge Stephens QC) granted leave to appeal against conviction in both cases. 
5.	Leave was granted to argue the grounds advanced in a skeleton argument dated 4 December which had been drafted by Mr Spencer and Mr Benson, neither of whom had represented the appellant at either trial.  In addition, as we understand it, the court in effect adjourned an application to advance a further ground of appeal which had been prepared by the appellant himself, relating to covert surveillance.  Mr Spencer now advances the grounds upon which leave was granted and seeks leave to advance the ground which was adjourned.  The appeal thus involves a consideration of one ground arising out of the fraud trial and involves or potentially involves eight grounds arising out of the drugs trial.
6.	The full court did not consider the renewed applications for leave to appeal against sentence, which must we think be treated as adjourned pending the determination of the appeals against conviction.
The fraud trial
7.	The sole ground of appeal is that the judge misdirected the jury on the approach to the appellant’s no comment interview and that, as a result, his convictions are unsafe.  This involves a consideration of both sections 34 and 35 of the Criminal Justice and Public Order Act 1994 (“the Act”) because, not only did the appellant give a no comment interview, but he also did not give evidence.  
8.	Sections 34 and 35 provide, so far as relevant, as follows:
“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 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; or
(b)	on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,
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, subsection (2) below applies.
(2) Where this subsection applies - 
(a)	a magistrates’ court inquiring into the offence as examining justices;
(b)	a judge, in deciding whether to grant an application  under –
(i)	section 6 of the Criminal Justice Act 1987 (application of charge of serious fraud in respect of which notice of transfer has been given under section 4 of that Act; or
…
(c)	the court, in determining whether there is a case to answer; and 
(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.	(1) At the trial of any person who has attained the age of fourteen years for an offence, subsections (2) and (3) below apply unless -
(a)	the accused’s guilt is not in issue; or
(b)	it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence;
but subsection (2) below does not apply if, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence.
(2) Where the subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal without good cause, to answer any question.
(3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.
(4) This section does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a failure to do so.
(5) For the purposes of this section a person who, having been sworn, refuse to answer any question shall be taken to do so without good cause unless-
(a)	he is entitled to refuse to answer the question by virtue of any enactment, whenever passed or made, or on the ground of privilege; or
(b)	the court in the exercise of its general discretion excuses him from answering it.
(6) Where the age of any person is material for the purposes of subsection (1) above, his age shall for those purposes be taken to be that which appears to the court to be his age.
(7) This section applies -
(a)	in relation to proceedings on indictment for an offence, only if the person charged with the offence is arraigned on or after the commencement of this section;
(b)	in relation to proceedings in a magistrates’ court, only if the time when the court begins to receive evidence in the proceedings falls after the commencement of this section.”
Section 38(3) of the Act provides
“A person shall not have the proceedings against him transferred to the Crown Court for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in sections 34(2), 35(3) ….
9.	Before considering the part of the summing up which is complained of it is appropriate to set out the facts.  The prosecution case on count 1 was, put shortly, as follows.
i)	During 1990, the appellant seized a business opportunity to enter into an agreement with a local farmer, Anthony Crane, to build a nine-hole golf course on part of the land of Kingstand Farm in or near Leicester.  During the five years or so that followed the initial agreement the appellant succeeded in creating a nine-hole golf course on the land, together with a clubhouse, restaurant, living accommodation and a variety of other benefits associated with the running of such an enterprise.  He continued to reside on the premises at the club until he was arrested for alleged drug offences on 19 February 1998.
ii)	During the period covered by the indictment, goods and services to a value approaching £1 million were supplied to the appellant in pursuance of the enterprise.  Save in very few instances, when payment was essential to continue the running of the club, none of the goods or services was paid for.
iii)	As was clear from the evidence either called or read during the trial, count 1 involved the setting up of the enterprise together with two others named Foster and Adam.  From the spring of 1991 onwards, and through the use of a limited company, Anjou Leisure (UK) Ltd (‘Anjou Leisure’) of which Foster and Adam were directors, the appellant was able to persuade contractors and others who supplied essential building services that Foster (often using the false name of Turner) and his company were a wealthy and experienced concern in the golfing world, eager to develop a new course at the site.  The appellant put himself forward simply as a marketing agent for the company.
iv)	The use of the dishonest front proved to be successful, and the services of architects, builders, contractors and others associated with building ensured that within the year substantial progress had been made at the site which included the provision of office accommodation and a considerable start had been made on the main clubhouse.
v)	By the spring of 1992, Anjou Leisure had outlived its usefulness.  Creditors were chasing payment, knowledge of the company’s inability to pay was widespread and various legal actions were afoot.  Accordingly, Anjou Leisure went into liquidation on 9 December 1992 and Foster and Adam simply disappeared.
10.	As put at the trial, the appellant’s case on count 1, which covered the period from initial meetings between the appellant, Foster and Adam in respect of the proposed building works up to the liquidation of Anjou Leisure on 9 December 1992, was that he was simply a paid consultant or marketing agent working for Foster and Anjou Leisure.  The cross-examination of the witnesses called in support of the prosecution’s case on count 1 was designed to establish that Foster was the leading light and that the appellant was taking a secondary role.  In short the appellant’s case was that Foster was in charge at the golf club, whereas the appellant was simply looking after the greens and the like.  Although a small number of the witnesses accepted that that was the case, most of the evidence pointed to the appellant being in overall (or at the very least joint) control of the project. 

11.	The prosecution case on count 2 may be summarised in this way:
i)	Before Anjou Leisure went into liquidation Kingstand Golf and Country Club Limited had been incorporated and, on the prosecution case, was designed to act as the new vehicle to absorb liability in respect of future debts.  Although not a director of the new company, the evidence disclosed that the appellant continued the fraud from the golf club in exactly the same format as before, except that he enrolled others to assist in the dishonest running of the club and the ordering of goods and services.  For example, fencing was erected, greens and fairways laid, driving range completed and catering facilities put in place, all supplied on the understanding that payment would be made.  None of that work was in fact paid for.  Count 2 ran from the date of incorporation of Kingstand Golf and Country Club Ltd.
ii)	The appellant installed a team of minders to “front” the club and to run the shell companies which were to operate from the premises in order to keep the creditors at arms length.  However, a number of witnesses gave evidence for the prosecution that the appellant was at the heart both of the organisation of the club and of the ordering of the goods and services supplied.
12.	Again, the cross-examination of the witnesses called by the prosecution suggested that the appellant was merely a paid consultant employed by the club to attend to the maintenance of the land, greens and fairways and was not involved in the organisation of the financial side of the business.  It was also suggested that a man named “Ash”, from whom a number of creditors had taken orders at the club was not the appellant but was in fact “Ash Parma”, a man whom the appellant alleged was working at the club at that time.  Questions were put to witnesses (particularly to the “hostile witness” Butler) to establish that “Ash” and the appellant were not the same person.  Evidence was, however, given by Andrew Robinson, the accountant instructed by the appellant and his brother Mohammed to attend to financial and company formation affairs, that when he met the appellant, the appellant told him that his name was Shokat, but that he preferred to be called ‘Ash’.
13.	In May 1993, some creditors invaded the land at the golf club.  The appellant swore an affidavit in injunctive proceedings begun by him in which he alleged that he was the owner of the club and that he had personally injected £750,000 of his own money into the enterprise.  The prosecution asserted that the affidavit contained lies but relied upon it as including admissions contrary to the case put forward on behalf of the appellant at the trial.
14.	The prosecution case was that after those proceedings the appellant succeeded in regaining control of the club from the creditors.  Thereafter, in order to ensure that the appellant’s position at the club was secure a formal lease was granted by the owners of the land to Soyab Chenia, a relation of the appellant.  The appellant signed the lease as guarantor.
15.	The prosecution further relied upon the setting up of a number of different companies which it said were controlled by the appellant as part of an attempt to frustrate the attempts of the creditors to chase their monies.  It is not necessary to recite that evidence in order to determine the issues in this appeal. Suffice it to say that, although the appellant did not give evidence, he maintained through counsel, both in cross-examination and during counsel’s closing speech, that he was simply a paid consultant of the club and not involved in the ordering of goods and services on behalf of those he maintained were in charge.  They were or included first Foster and Adam and thereafter Lisa Abel and others.   
16.	As already stated, the sole ground of appeal arises out of the judge’s direction on the circumstances in which the jury should consider drawing an adverse inference arising out of the appellant’s refusal to answer questions in interview.  The judge directed the jury as to how they should approach both the appellant’s failure to answer questions in interview and his failure to give evidence.  He gave those directions on the morning of the second day of his summing up just before he asked them to retire to consider their verdicts.
17.	Before turning to those directions we should note that at the end of the first day of the summing up the judge reminded the jury of the fact that they had before them a manuscript document.  The position was that before the first interview began the appellant handed a manuscript document to the police which set out his reasons for not answering questions.  It was in these terms:
“I am not prepared to make any comment on any allegations at this interview because I have no confidence that the officers conducting this interview are investigating this allegations fairly.  There are already a number of complaints of misconduct against the Leicestershire Constabulary including theft of money and substantial property, before the police complaints authority.  My Solicitors have also informed me that they are about to issue proceedings in the High Court which involve allegations against the Leicestershire Constabulary.
I am also concerned that items of possible evidential value in my defence have been seized and are not accounted for, accordingly I am not prepared to co-operate in this enquiry, also this is a very complicated matter which involves large numbers of documents.  Access has been requested by my Solicitors and denied, without which I will be unable to do myself justice in an interview.”
18.	The judge said this to the jury with regard to that manuscript document:
“Shokat Chenia, who had a solicitor with him, made “No Comment” in relation to any of the questions that were asked of him, though, of course, as far as reaction to all of this is concerned, you have the manuscript document which he does submit and which is before you and which the prosecution say contains completely false allegations as to the way in which he was treated in the course of this investigation and it is really evidence of his reaction and what he was then saying about the whole situation.  It is a matter entirely for you to evaluate its significance, if any.  Certainly you will remember that DC Tait said that he asked the defendant continually if he was the owner of Kingstand and, in fact, there was no answer to that.  In answer to Mr Pearse-Wheatley, he said that a letter was received in relation to access to documents and so on and that every request that was made for such access was complied with.”
19.	We should set out both the directions which were given to the jury the next morning just before they retired to consider their verdicts.  They were in these terms:
“In the context of the interviews I have to give you another direction.  Throughout his interviews, as you remember, the defendant answered “no comment” and you will remember DC Tait saying on, I think it was on five occasions in the course of those interviews, the defendant was given a caution.  Nonetheless he answered “no comment” throughout.  The defence which is put forward by Mr Pearse Wheatley on his behalf is this, is it not, that as far as count 1 is concerned you cannot be satisfied that he was an accomplice to the conspiracy in count 1.  The prosecution have not proved the proposition beyond reasonable doubt that he was an accomplice.  The defence, in other words, is that it was or may have been Foster and/or Adam who were in fact running this and Chenia himself was simply an innocent dupe.  The same sort of proposition is advanced to you by the defence, is it not, in relation to count 2, but in relation to the other people who are named in that count.  So that, on the face of it, appears to be the defendant’s defence, and he didn’t mention that when he was questioned under caution.
The Crown say, and you may think, that in the circumstances when he was questioned he could reasonably have been expected to mention it, namely, to say to the police “look, it was Foster and Adam, nothing to do with me”, and “it was Lisa Abel, or whoever, nothing to do with me.”  If he failed to mention those matters, as he did, and you think there is any significance in that failure when he was questioned and interviewed, decide whether in the circumstances which existed at the time it was a fact that he could reasonably have been expected to mention.
The law is that you may draw such inferences as appear proper from his failure to mention it at that time.  You don’t have to hold it against him.  It is for you to decide whether it is proper to do so.  Failure to mention the kind of facts to which I have referred at the time cannot on its own prove guilt, of course.  But, depending on the circumstances, you may hold that failure against him when deciding whether he is guilty.  That is, you may take it onto account as some additional support for the prosecution’s case.  Ladies and gentlemen, it is entirely for you to decide whether or not it is fair to do so, and if you think it is unfair to do so, forget all about it as a proposition.
The defendant has not given evidence.  That of course is his right.  It would be your right and it would be my right if we were ever faced with criminal proceedings.  He is entirely entitled, as he has done, to sit in the dock and say “you, Mr Upward, prosecute me in this case.  You prove it.”  You must not assume he is guilty just because he has not given evidence because failure to give evidence cannot on its own prove guilt.  However, as you heard me tell him, through Mr Pearse Wheatley, depending on the circumstances, you may take into account his failure to give evidence when deciding on your verdicts.
In the first place, when considering the evidence as it is now, you may bear in mind that there is no evidence from the defendant himself which in any way undermines or contradicts or explains the evidence put before you by the prosecution.  In the second place, if you think in all the circumstances that it is right to do so, you are entitled when deciding whether the defendant is guilty of the offences charged to draw such inferences from his failure to give evidence as you think proper.
What inferences can you properly draw from the defendant’s decision not to give evidence before you?  If and only if you conclude that there is a case for him to meet, you may think that if he had an answer to it he would have gone into the witness box to tell you what it is.  If in your judgment the only sensible reason for his decision not give evidence is that he has no explanation or answer to give or none that could have stood up to cross-examination, then it would be open to you to hold against him his failure to give evidence, that is, take it into account as some additional support for the prosecution’s case.  Let me emphasise, ladies and gentlemen, you are not bound to do so.  It is, as in respect of the last direction that I gave you, for you to decide whether it is fair to do so or not.”
20.	Mr Spencer correctly concedes that the direction relating to the appellant’s failure to give evidence is not open to criticism.    However, he submits that the judge should not have given an adverse direction under section 34 arising out of the appellant’s failure to answer questions at interview at all; alternatively that the direction given is defective in a number of respects.  He submits first that it does not comply with the specimen directions issued by the Judicial Studies Board (‘JSB’) in April 1998 and second that it does not satisfy the criteria laid down in the more recent authorities and reflected in the more recent specimen directions issued by the JSB.
Should a section 34 direction have been given?
21.	Mr Spencer submits that a section 34 direction should not have been given for two reasons, first because the appellant did not fail to mention “a fact relied on in his defence” within the meaning of the section and second because, if he did, the facts not mentioned amounted to the whole of his defence.
“Any fact relied upon in his defence”
22.	There are now a large number of cases which have considered directions given under section 34 of the Act.  In Argent [1997] 2 Cr App R 27 Lord Bingham CJ, giving the judgment of the court, set out six conditions which must be met before the jury can draw an adverse inference from a failure to mention a fact in interview.  One of those conditions was that the defendant must have failed to mention “any fact relied upon in his defence”.    
23.	There has been some difference of view in the cases as to what is meant by “any fact” in this context.  In Nickolson [1999] Crim LR 61 it was held that an explanation at the trial which was in the nature of a theory or a possibility or speculation was not a fact for this purpose.   In Moshaid, unreported, 27 January 1998, the prosecution put a video in evidence which showed the appellant and a man called Mahmood.  The case advanced on behalf of the appellant was to admit that he and Mahmood had been filmed together on the video but to assert that it was Mahmood who had passed some packets of heroin to him and only Mahmood to whom  money had been given and to say that the police officers’ evidence to the contrary was mistaken.  The appeal was allowed on a number of grounds because the judge made several unfortunate remarks to the jury, but in the course of giving the judgment of the court that section 34 of the Act had no application, Judge LJ said:
“As already noted, the appellant elected not to give, or call, any evidence at the trial.  Therefore he did not fail at the interview at the police station to mention, in the language of section 34(1), “any fact relied on in his defence at trial”.”
Judge LJ also referred to an observation by Lord Taylor CJ in the House of Lords during the passage of what became section 34, namely:
If a defendant maintains his silence from first to last and does not rely upon any particular fact by way of defence, but simply puts the prosecution to proof, then section 34 would not bite at all.”
24.	We entirely agree that merely to put the prosecution to proof of its case would not amount to reliance upon a fact for this purpose.  However, we do not think that, on the true construction of the section, the only way that the defence can rely upon a fact is by adducing it in evidence by calling the defendant or another witness.  Such a conclusion would be inconsistent with the decision of this court in Bowers, Taylor and Millen (1998) 163 JP 33, where Rose LJ, giving the judgment of the court, said at pp 43-4:
“… it is, in our judgment, plain from the words of the section that an inference may be drawn, adverse to a defendant, even though he did not give evidence.  If it were otherwise, as Sir Brian Hutton CJ pointed out in McLernon [1995] Crim LR 604, subs (2)(c) of s 34 in the English statute, which permits the court to draw inferences in determining whether there is a case to answer, would have no effect.  Furthermore, it would be absurd if the accused were able to preclude the drawing of inferences under s 34 by not giving evidence.  Such an absurdity would be, as it seems to us, contrary to the purpose of ss 34, 35 and 36 … .  As Lord Bingham … pointed out in Argent … ,  if s 34 is to be relied on the jury must resolve two questions of fact.  First, that the defence relied on a particular fact, and secondly, that the defendant failed to mention it when questioned.  A fact relied on may, in our judgment, be established by the accused himself in evidence, by a witness called on his behalf, or by a prosecution witness, in evidence in chief, or in cross-examination.  In the present case, there was, it is common ground, no such fact.  Accordingly no direction under s 34 was called for.”
We note in passing that the appeal was nevertheless dismissed because the court took the view that the conviction was safe.  
25.	It is clear from the above passage that a fact which is in evidence may be relied upon for this purpose whether it is adduced in evidence in the course of the prosecution or defence case.  In so far as the court was construing the section more restrictively in Moshaid, we prefer the reasoning in Bowers, Taylor and Millen.  Indeed, we do not think that the arguments can have been fully deployed before the court in Moshaid because reference to section 34(2)(c) makes it clear that an inference can be drawn for the purpose of deciding whether there is a case to answer, which is an exercise which takes place before any evidence is called on behalf of the defence.  It follows that the section expressly contemplates that a fact may be relied upon by the defendant which is not put in evidence on his behalf.
26.	This court also considered the meaning of the phrase “any fact” in Milford [2001] Crim LR 330.  Giving the judgment of the court, Potter LJ said at paragraph 32:
“… There are two reasons why we reject the submission of Mr Osborne that the ambit of s.34 does not extend to cases where at trial the defendant gives a hitherto unadvanced innocent explanation for facts or events which he does not dispute occurred, but simply asserts that his own involvement was innocent by reason of matters of relationships explained by him for the first time.  First, while we bear in mind the observations of Lord Bingham CJ in Bowden that the provisions of the Act should not be construed more widely than the statutory language requires, it seems to us that the words ‘any fact’ do not fall to be read only in the narrow sense of an actual deed or thing done but in the fuller sense contemplated by the Oxford-English Dictionary of ‘something that ... is actually the case ... hence, a particular truth known by actual observation or authentic testimony, as opposed to what is merely inferred, or to a conjecture or to fiction’.  Second, it seems to us necessary to approach the meaning to be attributed to ‘any fact’ having regard to the apparent purpose of the statute and, in particular, the context and stage of proceedings with which s.34(1)(a) is concerned, that is to say the questioning of a suspect at a stage when, the facts available to the prosecution without the benefit of any explanation of the defendant, give rise to a suspicion or inference of his involvement in the crime under investigation, and the questioning is being directed to establishing whether such suspicion or inference is well founded in fact.  The facts relevant to establishing whether or not the defendant is guilty of the crime in respect of which he is being interrogated go far wider than the simple matter of what might have been observed to happen on a particular occasion and frequently involve what reasons or explanations the defendant gives for his involvement in the particular event observed which, if true, would absolve him from the suspicion of criminal intent or involvement which might otherwise arise. ”
It appears to us that in that passage the court was not giving a narrow construction to the expression “any fact relied upon in his defence”. 
27.	We would add that we were also referred to a further unreported decision of this court, namely Hart and Maclean, which was given on 23 April 1998 and in which the judgment of the court was given by Hutchison LJ.  It was suggested that the defence had relied upon certain facts in the course of a submission of no case to answer.  The court held that the defence had said or done nothing “during the prosecution case or otherwise” to entitle the prosecution to argue that section 34(2) applied.  The court added:
“The sort of circumstances we conceive to which paragraph (c) of subsection (2) applies are, for example, where the defence has involved putting a positive case on behalf of the appellant, perhaps supported by documents or whatever it may be, or, a more likely example perhaps, where the defendant has chosen to refuse to answer questions when initially interviewed but some time later, after consulting his solicitor, has produced a prepared statement or has given later answers.”
28.	We can see that there is scope for argument as to whether the mere putting of a fact to a witness in cross-examination would be sufficient to amount to reliance upon it for the purpose of section 34, although we can think of circumstances in which it might be.  However, it is not necessary to resolve that question for the purposes of this appeal.  
29.	We accept the submission, which is supported by the authorities (to which we refer briefly in the context of the drugs trial), that it is incumbent upon the judge to identify the facts relied upon which it is said should have been mentioned in answer to questions from the police.  However, the judge did precisely that, albeit in short form.  He said this:
“The prosecution have not proved the proposition beyond reasonable doubt that he was an accomplice.  The defence, in other words, is that it was or may have been Foster and/or Adam who were in fact running this and Chenia himself was simply an innocent dupe.  The same sort of proposition is advanced to you by the defence, is it not, in relation to count 2, but in relation to the other people who are named in that count.  So that, on the face of it, appears to be the defendant’s defence, and he didn’t mention that when he was questioned under caution.
The Crown say, and you may think, that in the circumstances when he was questioned he could reasonably have been expected to mention it, namely, to say to the police “look, it was Foster and Adam, nothing to do with me”, and “it was Lisa Abel, or whoever, nothing to do with me.”
30.	Mr Spencer submits that in that passage the judge did not identify any fact relied upon by the appellant in his defence but was referring to points made by the defence which were, in the words of Potter LJ (quoting the Oxford English Dictionary) no more than “what is merely inferred, or to a conjecture” or no more than the possibility or speculation referred to in Nickolson.  In this regard he refers to the judge’s use of the expression “in other words” and of the expression “on the face of it” in the phrase “so that, on the face of it, appears to be the defendant’s defence”.   
31.	We are, however, unable to accept those submissions.  The summing up must of course be considered in the context of the case which the defence had put before the jury.  The defence was not relying upon conjecture, theory or speculation.  The defence case was that identified above, namely that the defendant was merely a paid consultant or agent and that, in the case of count 1, Foster was in charge.  The defence was relying on what they said was evidence to that effect, albeit not by the defendant.  The same was substantially true in relation to count 2.  The facts which the jury were being asked to accept by the defence was that the appellant was not the prime mover but played a subsidiary role in the golf club.  It seems to us that in the above passage the judge was identifying the essential facts relied upon by the defence, namely that it was first Foster and Adam and later Lisa Abel or others who were in charge and not the appellant.
32.	Those were facts which in our view were relied upon by the appellant in his defence within the meaning of section 34.  It follows that we reject the first basis upon which it is submitted that no direction should be given under section 34. 
The whole defence?
33.	Mr Spencer relies upon the decision of this court in Mountford [1999] Crim LR 575, in which it was held that a section 34 direction should not have been given.  The reason can be seen from this short passage from the judgment of the court which was delivered by Henry LJ:
““The fact” not revealed in interview constituted the defence to the charge.  In other words whether “the fact” not revealed was or may have been true was the issue in the case the resolution of which would determine the verdict.  It is difficult to see how the jury could have rejected the appellant’s reason for not mentioning “the fact” without also rejecting the truth of “the fact” – the truth of each depended on the truth of the other.
In our judgment, this element of circularity could only be resolved by a verdict founded not in any way upon the section 34 point but up[on the other evidence in the case.”
Substantially the same conclusion was reached in Gill [2001] 1 Cr App R 160, following Mountford:  see eg paragraph 14 where, Bracewell J, giving the judgment of the court, said:
“There are cases where it is inappropriate to give a direction under section 34 because the drawing of an inference under the section will depend upon findings which the jury cannot properly make under the section unless they are sure of the defendant’s guilt independently of the section”.  
34.	However, the cases do not all speak with one voice.  This can perhaps most clearly be seen from paragraphs 34 and 35 of the judgment of Potter LJ in Milford.  After referring to the effect of Mountford, as stated above, Potter LJ said:
“34.	….  However, as pointed out in the recent case of R v Hearne & Coleman, …. 4 May 2000, Mountford was concerned with very particular facts and, if its logic were more widely applied to cover the range of cases in which innocent explanations are belatedly advanced at trial in respect of facts or situations prima facie indicative of guilt, the very purpose of s 34 would be defeated: see also the commentary on Mountford at [1999] Crim LR 576.
35.	Shortly after the decision in Hearn & Coleman, and apparently without being aware of it, this court considered and followed the decision in Mountford.  In so far as there may be conflict between these various decisions, we prefer the reasoning of the court on Hearn & Coleman.  It seems to us to be the clear statutory intention of s 34, manifest from its wording, that the jury should, in respect of any fact relied on by the defendant in his defence, but not mentioned in interview, first resolve the issue whether he could in the circumstances existing at the time have been expected to mention it and, second, if the jury so concludes, it should draw such inferences as seem proper, subject to limitation imposed by s 38(3) that such inferences are alone insufficient for a finding of guilt.  While this requirement raises difficulties as to the directions to be given to the jury in order to define and emphasise the need for evidence from elsewhere, and may on the facts of a particular case suggest that a Mountford approach is apposite, the basic general approach should be one which does not defeat the general width of the statutory intention”.
35.	We entirely agree with that approach.  It seems to us that it will be the rare case in which what may be called a Mountford approach is appropriate.  Moreover it is only likely to be in the simplest and most straightforward of cases.  The instant case was not such a case and, although the question whether the appellant played only a subsidiary role in the club’s affairs was a very important issue, it was not the only question for the jury to consider.  We do not think that this consideration should have led the judge to refuse to give the jury a direction under section 34.        	     
Conclusion
36.	It follows that we reject the submission that a section 34 direction should not have been given, although we would add this.  It seems to us to be important that section 34 issues are considered by the trial judge in two stages: first, whether a direction is appropriate at all; second, how the approved directions should be tailored to meet the facts of the particular case.  While the statutory conditions for the drawing of the inference are simply stated, directions to the jury required to secure a fair trial of the issue on the facts of a particular case may and probably will be less so.  Discussion between the advocates and the judge before the commencement of speeches directed to both stages is, we think, a sensible and necessary precaution.
Was the direction adequate?
37.	The specimen direction issued by the JSB in April 1998 was in these terms, in so far as it was relevant to a failure to answer questions in interview:
“The defendant, as part of his defence, has relied upon ….  [The prosecution case is] [He admits] that he did not mention that fact when he was questioned under caution before being charged with the offence.  The prosecution case is that in the circumstances when he was charged, he could reasonably have been expected then to mention it.
If you are sure that he did fail to mention … when he was questioned, decide whether in the circumstances it was a fact which he could reasonably have been expected then to mention.  If it was, the law is that you may draw such inferences as appear proper from his failure to mention this matter at the time.
Failure to mention such a fact, cannot, on its own prove, guilt, but depending on the circumstances, you may hold it against him when deciding whether he is guilty, that is, take it into account as some additional support for the prosecution’s case.  You are not bound to do so.  It is for you to decide whether it is fair to do so.
[There is evidence before you on the basis of which the defendant’s advocate invites you not to hold it against him that he failed to mention this.  That evidence is …  If you think that that amounts to a reason why you should not hold the defendant’s failure against him, do not do so.  On the other hand, if you are sure that the real reason for his failure to mention this fact was that he then had no innocent explanation to offer, you may hold it against him.]”
38.	Mr Spencer submits that the direction given by the judge was defective in three particular respects:
i)	it does not satisfy the last part of the above direction;
ii)	it contains no reminder about the words of the caution or of the basic principle that a person has a right to remain silent when questioned; and
iii)	the judge did not tell that jury that no question of drawing an adverse inference could arise unless they were sure that the defendant had a case to answer.
39.	It will be observed that only the first of those involves a failure to direct the jury in accordance with the JSB specimen direction quoted above.  However, all three owe their origin to the decision of this court in the leading case of Cowan [1996] 1 Cr App R 1, although it was concerned only with directions given under section 35.    In that case, which was not concerned with section 34 at all, Lord Taylor CJ (giving the judgment of this court) said at p 7:
“We consider that the specimen direction is in general terms a sound guide.  It may be necessary to adapt it to the particular circumstances of an individual case.  But there are certain essentials which we would highlight:
1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the required standard is.  
2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent.  That is his right and his choice.  The right of silence remains.
3. An inference from failure to give evidence cannot on its own prove guilt.  That is expressly stated in section 38(3) of the Act. 
4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence.  Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen.  But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case.  It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence.
5. If, despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.
It is not possible to anticipate all the circumstances in which a judge might think it right to direct or advise a jury against drawing an adverse inference.  Nor would it be wise even to give examples as each case must turn on its own facts.”
It is convenient to consider each of the alleged defects in the summing up in the instant case in turn.
i)	Failure to give the last direction suggested in Cowan  
40.	In Condron [1997] 1 Cr App R 185, which was decided before the trial in the instant case and which was subsequently considered by the ECHR in Condron v UK (2001) 31 EHRR 1, in which judgment was given on 2 May 2000, the appellant said that he had not answered questions in reliance on his solicitor’s advice.  Giving the judgment of this court Stuart-Smith LJ said at p 194-5:
“The question of what adverse inference can be drawn from an accused’s failure to give evidence is obviously similar to the questions which arise under section 34.  Mr Shaw submits therefore that paragraphs 1 to 5 of the passage quoted [ie the passage from Cowan quoted above] apply with appropriate modifications to section 34.  We consider, however, that the specimen direction on section 34, coupled with the usual direction on burden and standard of proof and the fact that the jury will inevitably understand from the form of caution itself that the accused was entitled to remain silent at interview, covers the matters dealt with in paragraphs 1 to 4.  Paragraph 5 goes somewhat further than the specimen direction and the direction given by the judge in this case.  Having regard to the views of this Court in Cowan, we consider that it is desirable that a direction along the lines indicated above should be given.  There is as much a need to remind the jury of the circumstances in which a proper inference may be drawn under section 34 as under section 35.  There is no basis for distinguishing between the sections in that respect.  In fairness to the judge, it seems unlikely that a report of Cowan was available to him and certainly no submission was made to him that he should add to the specimen direction.”
41.	It is apparent from that passage that there was an earlier version of the JSB direction which did not include the last paragraph of the April 1998 direction which we have quoted above.  However, by the time of the trial in this case the April 1998 specimen had been published and refers in a footnote to both Argent and Condron, albeit as reported in the Criminal Law Review. 
42.	It is to be observed that in Condron this court said (in the passage just quoted) that it was desirable that a direction along the lines of paragraph 5 in Cowan should have been given.  It did not say that it was necessary, although in Condron v UK the ECHR took the view that the absence of such a direction amounted to a breach of article 6 of the European Convention on Human Rights (‘the Convention’).  The essential reason that it did so can be seen from this passage from paragraph 61 of its judgment:
“They [ie the defendants] testified that they acted on the strength of the advice of their solicitor who had grave doubts about their fitness to cope with police questioning (see paragraph 21 above).  Their solicitor confirmed this in his testimony in the voire dire proceedings (see paragraph 18 above).  Admittedly the trial judge drew the jury’s attention to this explanation.  It is to be observed that the Court of Appeal found the terms of the trial judge’s direction deficient in this respect (see paragraph 27 above).  In the Court’s opinion, as a matter of fairness, the jury should have been directed that if it was satisfied that the appellant’s silence at the police interview could not sensibly be attributed to their having no answer or none that would stand up to cross-examination it should not draw an adverse inference.”      
43.	There have been a number of later cases which have considered the appropriate direction in cases where the defendant says (either in evidence or otherwise) that he did not answer questions on his solicitor’s advice: see eg Betts and Hall [2001] EWCA Crim 224, [2001] 2 Cr App R 257 and a further decision of the ECHR made since the end of the oral argument in this appeal, namely Beckles v UK, which was delivered on 8 October 2002 and which is reported in The Times for 15 October 2002.     
44.	It is important to note that each case depends upon its own facts: see eg Smart and Beard [2002] EWCA 772 and Beckles v UK, which stressed that whether the drawing of adverse inferences from an accused’s silence infringed the fair trial provisions of article 6 of the Convention was a matter to be determined in the light of all the circumstances of the case.  This is not a case in which the appellant refused to answer questions on the advice of his solicitor.   
45.	Mr Upward nevertheless properly concedes that in all the circumstances the judge should have included a direction along the lines of the last paragraph of the April 1998 specimen.  Thus he should at least have told the jury that they should only hold the appellant’s failure to mention the relevant facts if they were sure that the real reason for his failure to do so was that he had no innocent explanation to offer.   
46.	It is unfortunate that there was no discussion of the judge’s proposed direction with counsel before the summing up.  We cannot stress too strongly the importance of such a discussion.  The cases show that section 34 has given rise to much more difficulty than section 35.  They also demonstrate the care which is required to tailor the direction to the circumstances of the particular case.
47.	We should add that since the trial in this case there have been two further versions of the JSB specimen directions, in May 1999 and in July 2001.  We were told that the July 2001 version is the most recent.  As the notes to it make clear, it reflects the recent cases including Condron v UK and Betts and Hall.    It is our view that in the future, subject to the facts of the particular case, juries should be directed in accordance with the latest specimen, which seems to have met with the approval of the ECHR in the context of the accused’s reliance on legal advice in Beckles v UK. 
48.	It follows that we accept the submission that the judge should have directed the jury in accordance with the last part of the April 1998 JSB specimen, which he did not.  We return below to the question whether that failure was a breach of article 6 of the Convention and/or made the conviction unsafe.     
ii)	The caution
49.	Mr Spencer submits that the directions given by the judge were further defective because they failed to remind the jury of the words of the caution and the basic principle of the right to silence when questioned in interview.  It is true that he did not spell out the words of the caution, as the judge had done in Milford, but he reminded the jury that the appellant had been given a caution on five occasions in the course of the interviews.  It does not appear to have occurred to anyone at the trial that it was necessary to spell out the words of the caution again to the jury.
50.	The April 1998 JSB specimen did not contain a direction of the kind which subsequently appeared in the May 1999 and now appears in the July 2001 versions.  Moreover there is nothing in the cases decided before the trial in this case which suggested that it was necessary to go further than the judge did.  The May 1999 version contained the following:
“[When arrested, and at the beginning of each interview] this defendant was cautioned, he was told that he need not say anything, but that it may harm his defence if he did not mention something when questioned which he later relied on in court.  Anything he did say may be given in evidence.”
The July 2001 specimen direction begins as follows:
“Before his interview(s) the defendant was cautioned.  He was first told that he need not say anything.  It was therefore his right to remain silent.  However, he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court; and that anything he did say might be given in evidence.”
51.	Those developments reflect the more recent cases and should be followed in the future.  In our view it would have been desirable for the judge to have given a direction along those lines here but, given that the jury were reminded that the appellant had been cautioned five times, we do not think that the failure to include such a direction made the trial unfair or the conviction unsafe. 
iii)	Case to answer
52.	Mr Spencer submits that the judge should have directed the jury that no question of drawing an adverse inference could arise unless they were sure that there was a case to answer.  The May 1999 and July 2001 versions of the JSB specimen directions contain such a direction but the April 1998 specimen did not.  Mr Spencer submits that we should reach the same conclusion as the court did in Milford, as appears from paragraph 57 of the judgment as follows:
“There is no doubt that, by the standards now set in the current JSB guidelines, following the decision in Condron v UK, his direction was deficient.  It contained no passage making it clear that the jury should be satisfied that the prosecution has established a case for the defendant to meet before taking into account the silence of the defendant … ; and it contained no direction of the kind considered desirable in Condron and necessary in Condron v UK to the effect that the defendant had no innocent explanation to offer … .
53.	It would in our view have been desirable for the judge to include a direction of the kind suggested, namely that no question of drawing an adverse inference could arise unless the jury were sure that there was a case to answer.  However, we do not think that this trial could possibly be held to be unfair or the conviction unsafe on that ground.  That is because no jury could possibly have concluded that there was no case to answer on the facts.  
54.	The position here is in our view much as it was in Bromfield [2002] EWCA Crim 195, where the judge had failed to include a similar direction when giving directions under section 35 of the Act.  Goldring J, giving the judgment of the court (Rose LJ, David Steel J and himself) said this:
“51.	We have no doubt that there was a prima facie case and any jury would so decide.  We so conclude for the following reasons.
52.	[A particular point on the evidence]
53.	Whether there is a prima facie case (somewhat unusually) is a matter for the jury in this context.  The failure to make a submission of no case to answer at the close of the prosecution cannot therefore be decisive.  Indeed, as Mr O’Higgins submits, in each of these cases, either no submission will have been made or the judge will have decided there is a case to answer.  However, the fact that no submission was made may be a telling indication as to the strength of the prosecution case.  Here, no submission was made.  We have no doubt that any such submission would have been hopeless.
54.	In short, we have no doubt that there was a sufficiently compelling case for the appellant to answer.  The jury could not have come to a different conclusion.  The judge made it clear that the fact that the defendant had not given evidence could not prove his guilt.  He emphasised the right to silence.  He emphasised that the appellant had to prove nothing.  The failure to give direction 4 could not affect the safety of the conviction.”
55.	Although we are concerned with a direction under section 34, much the same can, in our judgment, be said here.  There was ample evidence against the appellant, including the contents of his own affidavit.  Counsel who appeared on his behalf did not make a submission of no case to answer at the trial.  As in Bromfield, any such submission would have been hopeless.  No jury could have concluded that there was no case to answer.  In these circumstances, there is no basis upon which we could properly hold that the appellant did not receive a fair trial or that his convictions were unsafe on this ground.              
Were the convictions unsafe?
56.	The question remains whether the convictions were unsafe because, by section 2(1) of the Criminal Appeal Act 1968, as amended, we must allow the appeal if we think that the relevant conviction is unsafe and must dismiss it in any other case.  There has been much debate as to the relationship between the concept of a fair trial under article 6 of the Convention and the concept of safety under section 2 of the 1968 Act.
57.	Mr Spencer relies upon the following statements of principle in the recent cases:
i)	In Francom [2000] Crim LR 1018 this court held that despite a misdirection (in the sense of a non-direction) in relation to section 34 the conviction was safe.  At paragraphs 47-48 of the judgment Lord Woolf CJ said:
“A misdirection of the jury can result in a breach of Article 6.  But it may not do so.  In the same way it may not make a conviction unsafe.  It all depends on the circumstances of the case ...  In a case such as the present, we would expect this Court to be approaching the issue of lack of safety in exactly the same way as the ECtHR approach lack of fairness.  The directions which a judge gives at a trial are designed to achieve the very fairness required by Article 6.1.  As we understand the jurisprudence of the ECtHR , that Court does not adopt a technical approach to the question of unfairness.  The ECtHR  is interested as was pointed out in Condron in requiring fairness of the trial in all the circumstances.  What the ECtHR was most concerned about in Condron was that there had been an infringement of the ‘fundamental importance of the right to silence, a right which ... lies at the heart of a fair procedure’.  Approaching the present case, we therefore not only pay the greatest attention to the guidance given by the ECtHR in Condron, but also focus on the circumstances of this particular case and ask ourselves whether the omission of the required direction by the judge has in fact achieved unfairness, focusing on the importance of the right to silence, or impaired the safety of the conviction, in a process not drawn any distinction between the two tests.”
The court was satisfied that
“... no reasonable jury could have come to a different conclusion from that which was reached by this jury if they were properly directed.”
ii)	In Togher [2001] 1 Cr App R 457 Lord Woolf CJ, giving the judgment of this court said (at paragraph 33):
“We would suggest that, even if there was previously a difference of approach, that since the 1998 Act came into force, the circumstances in which there will be room for a different result before this Court and before the ECtHR because of unfairness based on the respective tests we will employ will be rare indeed ... we consider that if a defendant has been denied a fair trial it will almost be inevitable that the conviction will be regarded as unsafe.”
iii)	In Forbes [2001] 2 WLR Lord Bingham, giving the opinion of the House of Lords said (at paragraph 24):
“Reference was made in argument to the right to a fair trial guaranteed by Article 6 of the ECtHR.  That is an absolute right.  But, as the Judicial Committee of the Privy Council has very recently held in Procurator Fiscal (Dunfermline) v Brown ..., the subsidiary rights comprised within that article are not absolute, and it is always necessary to consider all the facts and the whole history of the proceedings in a particular case to judge whether a defendant’s right to a fair trial has been infringed or not.  If no such consideration it is concluded that a defendant’s right to a fair trial has been infringed, a conviction will be held to be unsafe within the meaning of Section 2 of the Criminal Appeal Act 1968.  We would endorse the recent judgment of the Court of Appeal Criminal Division ... in Togher.”
iv)	In Milford Potter LJ reviewed the recent authorities of Francom, Togher and  Forbes and said in paragraph 56:
“It follows, that if in all the circumstances of the case the act or omission complained of amounts to a substantial or significant departure from the norms of fairness recognised by the ECtHR, then it will be treated as rendering the verdict unsafe, whereas some act or omission which in all the circumstances amounts to no more than a technical or insubstantial departure will not necessarily be so regarded.”
On reviewing the circumstances of the case the court held in paragraph 56 that the conviction was unsafe.
v)	In Betts and Hall the convictions were quashed on the basis of a defective section 34 direction.  At paragraph 55 of the judgment Kay LJ said:
“In the instant case, we were of the view that the jury may have failed to appreciate on the directions given that they could only draw inferences against the appellants if they were sure that their failure to mention facts was not merely a result of the advice, however adequate or inadequate that explanation might be, and could only do so if they were sure that the particular applicant had not at that stage any explanation to offer or none that he believed would stand up to questioning or investigation.”
58.	We accept for the purposes of this appeal that those statements represent the position as it is at present.  This case does not, as we see it, involve a consideration of the question in what circumstances (if any) this court might hold that a conviction is not unsafe even if there is a breach of article 6.  We would only add this.  In our view the cases make it clear that whether there is a breach of article 6 depends upon all the circumstances of the case.  Thus, a failure to direct the jury in a particular way may in some circumstances amount to a breach of article 6 whereas the same failure in other circumstances may not.
59.	Mr Spencer submits that the defect or defects which we have found to exist in the direction made the trial unfair and the convictions unsafe.  He relies in particular upon the decision of the ECHR in Condron.  However, as just stated, in our view each case depends upon its own facts.  It does not necessarily follow from the fact that a direction which should have been given was not given that there has been a breach of Article 6 or that the convictions are unsafe. 
60.	We have reached the conclusion that on the particular facts of this case the appellant received a fair trial and his convictions were safe for a number of reasons as follows.  First, in the fraud trial (by contrast with the drugs trial) the appellant did not refuse to answer questions in reliance upon a solicitor’s advice, so that the precise considerations in cases like Condron v UK and Beckles v UK do not directly apply here.  Second, the case against him was very strong.  We have set out in some detail the case advanced by the prosecution.  There was abundant evidence that the appellant was the prime mover in the whole Kingstand enterprise, that the scheme was designed to defraud creditors, that the appellant was responsible for it and that he acted dishonestly throughout.  As already stated, the appellant plainly had a case to answer.  No reasonable jury could have held that he did not and, unsurprisingly, no submission of no case to answer was made at the end of the prosecution case.  As in Bromfield, any such submission would have been hopeless.
61.	Third, the judge gave the jury a clear and accurate direction under section 35.  In particular, they were directed that he had a right not to give evidence, that they could only draw an adverse inference against him if they concluded that he had a case to meet and that, if in their judgment the only sensible reason for his decision not to give evidence was that he had no explanation or answer to give or none that could have stood up to cross-examination, it would be open to them to hold his failure to give evidence against him as some additional support for the prosecution case.  That direction is of course in almost identical terms to the JSB specimen direction under section 34 quoted above (because both are derived from Cowan).  Moreover it was the last direction given to the jury before they retired to consider their verdicts. 
62.	Fourth, adopting the approach of the court in Betts and Hall we have considered whether it is a reasonable possibility that the jury could have drawn a section 34 inference adverse to the appellant while at the same time not sure (1) that his written explanation for silence was untrue; and/or (2) that the real reason for his silence was the lack of an answer or an answer which would survive examination.  The judge, we note, placed fairly and squarely before the jury the issue whether the written statement was true or a pack of lies.  It does not seem to us that the jury, having heard the judge’s directions about fairness, can have been in any doubt that if they thought the written statement was true or may be true it would be unfair to draw an inference adverse to the appellant.  We think there was no realistic possibility on the facts of this case that the jury drew an adverse inference while at the same time thinking the appellant’s statement of his reasons for silence might be true.
63.	Fifth, we further conclude that the jury was bound to approach the question whether the appellant had in interview an answer to the prosecution case which might stand up to examination in the context of his failure to provide such an answer even at his trial.  On the facts of this case, we do not consider it a realistic possibility, in the light of the full directions received for the purpose of section 35, that the jury held the appellant’s silence in interview against him, while also thinking he may have had an innocent explanation to give.  That being the case, it seems to us that the jury must have excluded both the reason for silence offered and the possibility of an innocent explanation before drawing any inference adverse to the appellant. 
64.	As already stated, the prosecution evidence was very strong.  It showed clearly that the appellant was running the club and all its ramifications from the start and the idea that he was not a party to any conspiracy of the kind alleged in counts 1 and 2 of the indictment was fanciful.  In these circumstances it seems to us to be scarcely surprising that, after quite a long trial, it took the jury only a little over one and a half hours to return a verdict of guilty on all three counts.
Conclusion
65.	In all these circumstances we have reached the clear conclusion that the appellant was fairly tried and safely convicted on all three counts and that his appeal against conviction in the fraud trial fails and must be dismissed.
The drugs trial
66.	We have reached a very different conclusion in the drugs trial.  Mr Spencer advances eight grounds of appeal.  It is, however, only necessary for us to consider grounds 3 and 4.  Ground 3 is that the judge failed to direct the jury properly with regard to voice identification and ground 4 is that he misdirected the jury under section 34 of the Act.  In the latter respect the argument traversed much of the ground which has been considered in the fraud trial.  It is therefore convenient to consider first ground 4 and then ground 3.  However, it is appropriate first to summarise the prosecution case.
The prosecution case
67.	Mr Upward submits that in deciding whether any misdirections which may be established render the appellant’s convictions unsafe, the court should have regard to the strength of the prosecution case against him.  We agree.  We also agree that there was indeed a strong case against him.  We can summarise that case from a document provided to us by counsel for the Crown.  We did not understand Mr Spencer to say that it is not a reasonably accurate (if not complete) account of the prosecution case.  
68.	In essence, the appellant and his brother Mohammed ran the golf club.  The co-accused Sidyot lived and worked there.  The prosecution case was that the brothers were engaged in drug dealing from the club.  The case against the appellant comprised surveillance tapes of conversations at the club, evidence of various activities at the club, the evidence of an accomplice Mitchell Allcroft and evidence of the events of 19 February 1998 including evidence of drugs and other items found at or near the club on that day.  It was on that day that the club was raided and the appellant arrested.  A quantity of 89.3 kilograms of cannabis resin was found in a lay-by on the A47 not far from the club which formed the basis of count 10.  It is convenient to summarise first the events of 19 February which led to count 10.
Count 10 – 89.3 kilograms of cannabis resin
69.	At about 8.00 pm on 19 February 1998, a Ford Mondeo was filmed by police arriving at the Leicester Forest East Services (‘LFES’) on the Ml motorway.  The driver was Tony Lindley and the front seat passenger was David Burns, both of whom subsequently pleaded guilty to possession of cannabis resin with intent to supply.  Six minutes later, the appellant and Richard Taylor set off from the golf club in a Toyota Previa.  They were filmed arriving at LFES five minutes later.  	At LFES, the Previa was seen being driven around the service area before halting to the rear of the Mondeo.  The appellant got out and touched fists with one of the occupants of the car, namely Burns.  The two vehicles then set off in convoy from LFES to the club, where they arrived at 8.13 p.m.  Its arrival coincided with the sound on the tapes of the guard dogs starting to bark.
70.	The Mondeo and its occupants did not go near the lay-by on the A 47 where the 89.3 kilograms of cannabis were later found, although Burns’ fingerprints were later discovered on one of the boxes containing the drugs.  The appellant and Shabbir Sidyot admitted that they, together with Mohammed, were at the club during the time that the Mondeo was there.  Richard Taylor drove the Previa back down to the end of the lane to keep watch.  In the meantime, according to the undisputed evidence of DC Hodges, there was a good deal of activity in the yard.  Two men were seen to make one trip from the rear of the car to the clubhouse before returning to the rear of the car.  The next recorded observation was: "Wrap up the boxes, we don't want to open them do we".
71.	According to the transcript, at about 8.18 p.m. the tractor started up, which the prosecution said was the same tractor which the police found to have a warm engine when they later examined it on the golf course adjacent to the A47.  The starting of the tractor coincided more or less with the departure of the Mondeo with the appellant in it.  Taylor followed in the Previa.  Both vehicles returned to LFES and Taylor then drove the appellant back to the golf club, before returning to the end of the lane.  Following the appellant’s return to the golf club, the transcript records telephone calls partly in English and partly in Gujerati, which included: "Hello Mo, Shokat?..”  and "Hello Mo two cars are coming... ."  These were said to be words spoken in furtherance of the conspiracy.
72.	As the police came through the gate, the observer in a police helicopter reported a runner heading towards the A47.  Sidyot's footprints were found in mud near to the tractor that was abandoned adjacent to the A47.  Agreed scientific evidence established, among other things that David Burns’ fingerprints the cardboard box containing the drugs.  There was also other scientific evidence relied upon by the Crown.
73.	We accept Mr Upward’s submission that, taken together, the prosecution evidence amounted to a strong case against the appellant that he was a party to a conspiracy to supply the cannabis resin found in the lay-by on the footing that it had been thrown away when it was appreciated that the club was about to be raided by the police.
The other counts
74.	These counts involved the appellant alone.  The individual counts of conspiracy are based on the fact that drugs of the kind identified in the counts were recovered from in or around the golf club.  The prosecution relied upon the unchallenged evidence of Mitchell Allcroft that drugs were being run from the golf club on a substantial scale.  Further, it was admitted that the appellant’s brother Mohammed was deeply involved in the sale and distribution of drugs on a large scale.  Allcroft gave evidence that the ‘Ash’ referred to on the tapes was the appellant.  His evidence was supported by prison records when he said that on 27th November 1997 he visited George Kaminsky at HMP Leicester with the appellant because the record shows that his companion was signed into the prison using the name Ash.
75.	The amphetamine count (count 1) related first to the drugs found in a hedgerow adjoining the golf club and recovered by a Mr. Harvey, who lived nearby.  It also related to drugs found under a bridge by PC Bryan.  The scientific evidence matched the bags containing the drugs found by Mr. Harvey with bags containing the several drugs recovered from under a slab by PC Smith.  All of these bags were linked to the stock of identical bags recovered from the kitchen in the golf club.  The chemical profile of the drugs found by Mr. Harvey and those found by PC Bryan meant that it was a distinct possibility that both lots of the drug emanated from the same source. 
76.	As to the heroin count (count 3), a small amount of the drug was found under the slab.  The bags that were found with it were linked to bags found elsewhere containing drugs and to stocks of identical unused bags recovered from the golf club.  Further scientific findings confirmed traces of heroin on the three steel press plates made to fit the hydraulic press found in the golf club.  No explanation was offered to explain the heroin that was found on those three plates or to suggest why the press was acquired. 
77.	As to the cocaine count (count 5), a small quantity of the drug was found under the same slab.  In the tape recorded conversations, speakers talk of 'washing' and 'crack', which are familiar terms related to cocaine and the manufacture of its derivative 'crack'.
78.	As to the ecstasy count (count 7) and to the other cannabis resin count (count 8),  a small amount of both drugs was found with the heroin and cocaine.  However, a much larger amount (1.3 kilograms) was found in bags in a ditch, close to the bridge from under which the amphetamine was recovered.  The bags were scientifically linked with identical bags recovered from the golf club restaurant together with a set of electronic scales.  The amount of the drug was too great for personal use
79.	As to the appellant, the prosecution case was summarised by Mr Upward in this way.  He denied that he was Ash, contrary to the evidence of the accountant Mr. Robinson, who clearly recalled that the appellant introduced himself as Ash.  He also denied that he was GT.  However, he admitted that his telephone number was 0411 411026 and it could be shown that Sidyot's telephone memory recorded that number against 'GT'.  That was the telephone used by Taylor to call the club as the police moved in on 19th February at 8.37 p.m.  Further, Denise Bentham, who used to live with the appellant, identified the voice of the man calling himself GT as the voice of Shokat Chenia.
80.	Mr Upward submits that the passage which Ms Bentham identified on the transcript was significant because by substituting 'tractors', which was the word in fact used on the tape for 'capsules', which was the word on the transcript, the words used were exactly the words used by the appellant in the witness box to describe how two of his tractors 'went walkies'.  
81.	Further, the sum of £15,000 in cash was recovered from the appellant’s bedroom.  Mr. Robinson said in evidence that the appellant paid him in cash from a large sum in a carrier bag.  The only reasonable inference the jury could draw, said the Crown, was that there was no way that so large an operation could have been carried on directly under the appellant’s nose without his being a party to it, especially given his role in the golf club.
82.	The jury were entitled. to ask: 
i)	What sort of honestly run golf club has the kind of security systems that surrounded this golf club, namely electronic alarms, cameras, security lights, Rottweiler dogs and explosive devices set off by trip-wires?
ii)		Why was the film removed from the CCTV cameras for the period during which drugs were being delivered to and received by the men in charge of the club?
iii)	How many golf club owners recover money owed by recruiting large men 'who look the part - no hitting or banging required’?
iv)	How many golf clubs have 1½ cwt of drugs delivered under the cover of darkness, at a time when an ostensibly uninvolved manager (ie the appellant) was on the premises?
83.	These are indeed questions which the jury would no doubt wish to ask itself and we recognise, as Mr Upward submits, that the case against the appellant was a strong one.  We turn to ground 4 of the appeal. 
Ground 4 - Section 34
84.	The appellant declined to answer any questions when interviewed by the police.  However, unlike in the fraud trial, he did give evidence.  The judge gave the jury written directions which he also read to them orally.  The direction complained of is in these terms:
“Mr Chenia declined to answer any of the questions which the police put to him in interview.  He has now given evidence in the trial.  Similarly Mr Sidyot denied being concerned with drugs but otherwise declined to answer questions on the advice of his solicitor and again has given evidence.  They both say that they declined to answer the police questions because of advice from their solicitors.  They are of course adults and capable of making their own decisions, including decisions about whether or not to answer the questions; they cannot as it were shelter behind the solicitor’s advice.  If you consider that any of their evidence given here states facts which either could reasonably have been expected to mention in interview then if you consider it fair to do so you may draw such inferences as appear proper from the failure of that defendant to mention those facts at the time. Such failure cannot alone prove guilt but can assist in proving it.  Whether it does so here and if so to what extent are questions for you.”
85.	Mr Spencer, who again did not appear for the appellant at the trial, submits that that direction was insufficient, although he recognises that counsel for the appellant was given an opportunity to make submissions with regard to it before the summing up and did not do so.  At the time of the trial the JSB specimen dated April 1998 had not yet been replaced by the May 1999 version.  Mr Spencer’s principal submissions are that the judge failed to identify the facts relied upon by the appellant in his defence which the prosecution said that he could have been expected to mention and that he failed to direct the jury that they could only draw an adverse inference from his failure to answer questions if satisfied that his silence in interview could only sensibly be attributed to his having no answer or none that would stand up to questioning or investigation.  As in the fraud case, Mr Spencer also relies upon the judge’s failure to remind the jury of the terms of the caution or the basic right to silence and/or to tell the jury that before drawing an adverse inference from silence in interview they must be satisfied that the prosecution had established a case to answer.
86.	We say at once that we have reached the conclusion that the two principal points taken by Mr Spencer are correct and that they render the convictions unsafe so that it is unnecessary to consider the other submissions separately.  We therefore focus on the two main points.
The ‘facts’ relied upon.
87.	The judge did not identify the facts relied upon by the appellant in his defence.  We accept the submission that he should have done so.  As stated in paragraph 22 above, and as is apparent from the express terms of section 34 and the decision in Argent, one of the conditions which must be met before the jury can draw an adverse inference from failure to mention a fact is that the defendant must have failed to mention “any fact relied upon in his defence”.  Unfortunately the April 1998 JSB direction did not spell out that requirement and it was not until the May 1999 version that it was made clear that the relevant facts should be spelt out for the jury.  We are nevertheless of the view that the direction in this case should have stated the facts in order to help the jury to focus upon the facts relied upon in the appellant’s defence which it was said that he failed to mention.
88.	The authorities seem to us to show that such a direction should be given: see eg Milford at paragraph 38(ii) and Betts and Hall at paragraph 30.  It is, however, important to note that this requirement must be approached in a commonsense way.  Thus in Betts and Hall Kay LJ said at paragraph 30:
“The next criticism is that the judge told the jury that he could not give them “a list of all the things relied on in court, because to do so would be rather a long list”.  It is said that that overstated the position and that in any event, there was a duty on the judge to identify matters that can properly be said to be relied on and not mentioned at interview in case the jury were to include wrongly in their consideration matters that could not be said to be relied upon.  We can see some merit in that argument but again taken alone we would not consider that a sufficient basis for concluding that the convictions were unsafe.  The judge identified five “facts” that he suggested were the most important and it is very difficult to believe on the facts of this case that the jury would not draw an inference based upon these matters but would do so in respect of some distinct matter that they wrongly identified.”
89.	Unfortunately, perhaps because of the form of the April 1998 specimen direction and the absence of submissions on the topic, the judge did not identify any of the facts relied upon at the trial which the prosecution said that the appellant could reasonably have been expected to mention.  In these circumstances we have reached the conclusion that the direction was defective in that respect.  It is not necessary for us to decide whether that defect would by itself have led to the conclusion that there was a breach of article 6 of the Convention or that the convictions were unsafe because we have also concluded that the direction which the judge gave as to how the jury should approach the appellant’s evidence that he did not answer question in reliance upon advice from his solicitor was not adequate.
Reliance on solicitor’s advice
90.	Again, as we have observed in connection with the fraud trial, there have been a number of developments in this area since the trial: see eg paragraphs 42 and 43 above.  As indicated in paragraph 47, the present position is reflected in the JSB specimen direction dated July 2001, which is based upon cases like Condron v UK and Betts and Hall.  In Betts and Hall, which contains much valuable guidance in this class of case, Kay LJ said (at paragraph 51) that section 34 has to be interpreted, if possible, in a way which is compatible with a defendant’s right to a fair trial under article 6.  We think that same must be true here, even though the Human Rights Act 1998 was not of course part of our law when the trial in this case took place.
91.	In paragraphs 53 to 55 Kay LJ said:
“53.	…  In the light of Condron v United Kingdom it is not the quality of the decision but the genuineness of the decision that matters.  If it is a plausible explanation that the reason for not mentioning facts is that the particular appellant acted on the advice of his solicitor and not because he had no or no adequate explanation to give then no inference can be drawn.
54.	That conclusion does not give a licence to a guilty person to shield behind the advice of his solicitor.  The adequacy of the explanation advanced may well be relevant as to whether or not the advice was truly the reason for not mentioning the facts.  A person, who is anxious not to answer questions because he has no or no adequate explanation to offer, gains no protection from his solicitor’s advice because that advice is no more than a convenient way of disguising his true motivation for not mentioning facts.
55.	In the instant case, we were of the view that the jury may have failed to appreciate on the directions given that they could only draw inferences if they were sure that their failure to mention facts was not merely the result of the advice, however adequate or inadequate that explanation might be, and could only do so if they were sure that the particular applicant had not at that stage any explanation to offer or none that he believed would stand up to questioning or investigation.”           
92.	We have reached the clear conclusion that the same is true here.  The part of the direction (set out in full above) which related to legal advice was in these terms:
“They [ie both the appellant and Shabbir Sidyot] say that they declined to answer the police questions because of advice from their solicitors.  They are of course adults and capable of making their own decisions, including decisions about whether or not to answer the questions; they cannot as it were shelter behind the solicitor’s advice.  If you consider that any of their evidence given here states facts which either could reasonably have been expected to mention in interview then if you consider it fair to do so you may draw such inferences as appear proper from the failure of that defendant to mention those facts at the time”.
That direction was insufficient because it may have given the impression that the jury might draw an adverse inference because the appellant was sheltering behind his solicitor’s advice when they could only do so if they were sure, not only that his failure to mention facts was the result of the advice, however adequate or inadequate that explanation might be, but also that the appellant had at that stage no explanation to offer or none that would stand up to questioning or investigation.
93.	As appears below, we have reached the conclusion that in these circumstances the appellant did not receive a fair trial within the meaning of article 6 of the Convention and, especially in conjunction with the conclusions which have reached in connection with ground 3, that these convictions are unsafe, notwithstanding the undoubted strength of the prosecution case.      
Ground 3 – voice identification
94.	The police made a number of covert tape recordings at the golf club.  Indeed, police officers listened to no less than 179 tape recordings of secretly recorded conversations, some in English and some in Gujarati.  A compilation from the tapes was transferred to a compact disc in order to enhance the sound quality.  A transcript was made from the CD and put before the jury.  Part of the transcript was a translation from Gujarati.  The jury listened to the CD, in so far as it was in English, using infrared headphones.  The prosecution relied upon the contents of the conversations as implicating the appellant in the drugs offences.
95.	Initially the prosecution had sought to attribute particular passages on the tapes to the appellant by relying on expert evidence from two forensic experts in phonetics, Mr Allen Hirson and Dr Frederica Holmes.  Their report ran to 93 pages.  However, the report was served so late that two different teams of defence counsel withdrew from the case in circumstances which it is not necessary for us to describe.  In the event the prosecution decided not to rely upon the expert evidence and the appellant was represented both by leading and junior counsel and by solicitors at the trial.  The prosecution did not, however, abandon reliance upon the contents of the tapes.  On the contrary, it seems to us that they placed considerable reliance upon them.  Thus, although Mr Upward submits that the prosecution case is a strong one in the absence of the case, it was certainly not regarded as so strong at the trial that it was not necessary or appropriate to rely upon the tapes.  Indeed, in summing the case up to the jury, when the judge came to what he called a summary of the evidence, he identified seven categories of evidence, the first of which he called ‘the tapes’.
96.	We were told that the transcripts were put before the jury as the police officers’ best efforts to transcribe what they had heard over many hours of listening to the tapes.  It was agreed that the jury should have the transcripts and, so far as we are aware, there was no objection to their listening to the CD.  However, there was no agreement as to the admissibility of any of the statements on the tapes as to who was speaking.  At some points the transcript distinguishes between ‘AM’ (Asian male) and ‘EM’ (English male, but at other points it attributes conversation to the appellant by name.  Thus, for example there are statements on the transcripts which say, for example, ‘Shokat outgoing call ….’.
97.	In order to consider how the prosecution sought to use the tapes, it is necessary to set out the relevant parts of the summing up.  The relevant passages are at pages 16B to 19A and are as follows:
“ … you have got the transcripts there in front of you.  You have heard a deal of this played for you in court.  The transcripts you will know are there to help you, but it is your judgment as to what is said that must prevail, not the judgement of whoever it was who prepared the transcript.  We have seen, have we not, a number of places in which the transcript is pretty plainly wrong, although that is for your judgment and not for mine.  But the “capsules tractors” example is a pretty powerful one of that, is it not?  It underlines, does it not, that although you have the transcripts there available to you, in front of you for you to take out, for you to use during the case, for you to use tomorrow in the course of your deliberations, the transcript does not govern you.  You govern the transcript and you use your own judgment about what is being said, about who is speaking and about what they are speaking about in the various parts that are included on those transcripts.  Remember that the quality of the recordings is frequently very poor and remember too that frequently what was said was ambiguous and capable of bearing more than one meaning, and what the true meaning is is a matter for you and not for anybody else.
On the other hand, some of the recordings you may think were clear and explicit.  Use your judgment in order to determine who was talking about what, why and with whom.  Some important questions about the tapes may be these, but note the way I am phrasing this proposition – simply may be, because what is important about it is for you, not for me.  But perhaps a couple of important questions are, what nicknames, if any, are used by and of Mr Shokat Chenia?  Secondly, when a name is used, often at the beginning of a telephone conversation, of which the listening device of course only picked up one end, when a name is used, is it the name of the person speaking or the name of the person he is speaking to?  Perhaps those are two important questions about the tapes.
As to the transcripts, you have heard from Detective Constable Farr.  He was responsible for pages 7 to 23.  He listened to the tapes.  He made notes of what had been said.  He said “in many cases I had listened to it live and then I re-listened to the tapes afterwards.  This transcript is as accurate as possible.  Sometimes I would listen to it over and over again to make it as accurate as possible.  Since I performed that exercise some enhancement has been done.  My role was to produce an accurate record of what I could hear.  Sometimes I couldn’t hear”, and then of course we get the blanks.
Detective Constable Hodges also was a listening officer.  “I listened contemporaneously to the conversations.  Then subsequently I listened to the tapes and wrote down as much as I could decipher.”  He produced pages 24 to 40 of the transcript.  He said “it is accurate as far as I could make it accurate.  There were in all 179 tapes and Farr and I between us listened to all the recordings, the tapes and the digital recordings.”  As to Hodges’ transcripts, he said “I would only put a word in if I felt fairly sure.”
Thirdly and finally for the prosecution, Sergeant Bhundia.  He made notes of the translations of the Gujerati sections of the recordings and pages 1 to 6 inclusive of the transcript are his.
In addition to those, the three police witnesses, as to who was talking about what, with whom and about what on those tapes, you also had – and I will come to these in due course – the evidence given by Mr Allcroft – he listened to parts and said what he considered was being said – Mr Chenia and also Miss Bentham.  You have had evidence form all those three persons as well, which I will come to in due course as we go through.
So, members of the jury, the first topic of the seven I deal with is the tapes.  You have got your transcripts there.  Use them.  Use them with caution and bear in mind all the things that counsel have said about them, on one side and the other, and exercise your judgment upon what they amount to.”
98.	It appears to us from those passages that the jury were being asked to consider the contents of the tapes in a number of ways.  In each case they were asked to consider who was talking with whom and about what.  In the first place they were they were asked to use their own judgment to determine those questions.  Secondly they were asked to consider the evidence of the three police officers who had listened to the tapes and thirdly they were asked to consider the evidence of Mr Allcroft and Miss Bentham and indeed of the appellant himself.
99.	The judge did not however give the jury any direction as to how they should approach the evidence in so far as it was relied upon as evidence as to who was speaking.  Mr Spencer submits that they should have been warned of the dangers of identifying a person by his or her voice.  He relies upon a number of decisions of this court to that effect.  They are Hersey [1998] Crim LR 281, which was decided before the trial in this case, and Gummerson and Steadman [1999] Crim LR 681 and Roberts [2000] Crim LR 183, which were reported in the Criminal Law Review after the trial.  
100.	As the notes under the heading ‘Identification by Voice’ in the JSB directions of August 2000 note, in the first two of those cases it was held that in cases of identification by voice the judge should direct the jury by the careful application of a suitable adapted Turnbull direction and in Roberts this court referred to academic research indicating that voice identification was more difficult than visual identification and concluded that the warning given to the jury should be even more stringent than that given in relation to visual identification.  In the present case the judge did not give the jury any warning of the dangers of identifying the speaker on the CD by voice.  
101.	In our judgment he should have done so, especially since, quite apart from the question whether the jury should have been directed as to how they should approach the recordings, different considerations apply to the evidence of the police officers, the evidence of Mr Allcroft and of Ms Bentham.
102.	The police officers were no doubt doing their best to deduce who was speaking when they named a particular speaker on the transcript.  None of them was, however, an expert in voice identification.  If the prosecution wished to rely upon the evidence of a particular police officer to identify the particular speaker, we are of the view that the basis of that evidence should have been spelled out in a statement so that the defence could see what it was.  For example, in the case of the appellant, was the opinion of the particular officer based on recognition of his voice and, if so, how was it that he was sufficiently familiar with the voice to enable him to recognise it?  If it was based on some other consideration, the statement should have identified that consideration so that the defence, and indeed the court, could form a view as to whether the evidence was admissible and, if admissible, whether it was reliable.  It is not at all clear to us what was the basis for each officer’s opinion as to who was speaking.
103.	In the case of Mr Allcroft, the position was somewhat different because he undoubtedly knew the appellant.  At page 31G of the summing up, the judge recorded his evidence that he had heard the tapes and seen partial transcripts and that he recognised himself, Mohammed and the appellant on the tapes.  However, one of his answers seems to us to illustrate the possibility of error.  On page 27 of the transcript an Asian male says ‘Hello Mitch’ and and English male says ‘Hi Mo’.  Mr Allcroft said in evidence that Mo was short for Mohammed but that he (ie Mitch) thought that it was the appellant that he was speaking to,  ‘It sounds like Shokat’ he said.  It follows that on that occasion, either the police officer or officers who transcribed the tape were mistaken when they wrote ‘Hi Mo’ or Mr Allcroft was either mistaken or lying when he said in evidence that he thought he was talking to Shokat and not Mo.
104.	In our view that example highlights the importance of giving an adapted Turnbull direction warning of the danger of making an error in identifying a particular voice.  That was potentially of considerable significance here because the appellant and Mohammed were brothers and had voices which could have been confused with one another.  It was, as we understand it, the appellant’s case that, while his brother may well have been involved in drugs, he was not.  We recognise that it was the appellant’s case that Allcroft’s evidence was untrue and not simply mistaken, but some parts of it at least might have been mistaken and, it seems to us that the jury should have been warned of the possibility of mistake.
105.	The same considerations in principle apply to the evidence of Ms Bentham, although the possibility of mistake is much more remote having regard to the previous relationship between them.
106.	The other aspect of this part of the case about which we have some concern is whether it was appropriate to invite the jury to make their own judgment on a number of matters including who was speaking and what was being said.  We question whether it was appropriate to invite the jury to identify who was speaking on the recording by comparing what they could hear on the recording either with another voice on the recording or, say, with the appellant’s voice when he gave evidence in the witness box.  We see no reason why they should not listen to the recording to try to identify what was said.  For example if there was a dispute, as there might for example be between experts, as to whether the word spoken was ‘capsule’ or ‘tractor’, we do not see why the jury should not listen to the CD and form a view of their own, subject to appropriate directions which would depend upon the facts of the particular case.
107.	Equally there is of course no reason why the jury should not compare what was said on the CD with other evidence, as for example evidence that the appellant was Ash.  However, we do not think that a jury should, as it were, be asked to be their own voice expert.  We have reached the conclusion that, on the particular facts of this case, where the jury were unassisted by expert evidence, they should have been warned that they should not compare one voice with another by comparing the characteristics of each because of the dangers of doing so.
108.	It follows that, for the reason we have given, we have reached the conclusion that the jury were not given a sufficient direction on the dangers of voice identification.  The question remains whether the convictions were safe.  We recognise, as indicated above, that the case for the prosecution was a strong one, but the inferences to be drawn from what was said and recorded played a significant part in the trial.  
109.	Indeed, after they retired the jury asked to hear part of the CD again.  They were permitted to do so and the judge again warned them to be careful about filling in blanks.  He said this at page 92B to 93C:
“As I said to you, it is a matter for your judgment, but do be careful about filling in areas which have been left blank or dotted in our transcripts, because if you remember the officers who did the listening to all this and prepared the transcripts for us – Detective Constables Farr and Hodges – did say they listened to it over and again.  Often they had been present when the conversation was taking place live, and they could go back time and again to it.  If they have not been able reliably to say what is said, it is perhaps rather dangerous ground to embark on to say to oneself “oh, I know clearly what it is that is being said by whom” and so on, because obviously they have not been able to.  Remember their evidence was not controversial among the defence.  The defence were not saying “no, you are incompetent” or “you have not done the job properly” or anything of that nature.  Everybody is agreed that it is difficult.  So please remember that.  Remember too that it is agreed that in these conversations Taylor does not appear and is not apparently present.  Sidyot does not appear and is nowhere apparently present – I think he said to him or in his presence or anything of that nature – and nor are there any statements about Sidyot, or for that matter Taylor, in furtherance of the conspiracy.  Do you remember that phrase that I put in paragraph 14?  No-one is saying in here that there is anything in furtherance of the conspiracy which is admissible against anybody other than the people who are actually talking.  So please bear that in mind.  I hope you don’t feel that I am being impertinent to you in raising those matters with you.”
110.	It is again to be observed that that passage does not contain any warning with regard to the dangers of identifying who was speaking on any part of the recording.  Given the role played by the tapes in the trial, strong though the case against the appellant was, we cannot be sure that the jury would have convicted the appellant if they had been given appropriate warnings.
Conclusion
111.	It follows from our conclusions in respect of both grounds 3 and 4, which we have discussed at some length, that the appellant’s convictions after the drugs trial were unsafe and must be quashed.  In these circumstances it is not necessary to say anything about any of the other grounds of appeal.  
Conclusion
112.	For the reasons we have given the appeal against conviction in the fraud trial fails and is dismissed, whereas the appeal against conviction in the drugs trial is allowed and the convictions are quashed.  We will hear argument on the application for leave to appeal against sentence in the fraud case, on the appeal against sentence if leave is granted and we will consider the Crown’s application for a new trial in the drugs case on 1 November after this judgment has been handed down.