Neutral Citation Number: [2009] EWCA Crim 43
 
No: 200802799/D2 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 14th January 2009
 
B e f o r e:

LORD JUSTICE HUGHES

MR JUSTICE WILKIE 
 
SIR GEOFFREY GRIGSON 
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R E G I N A 

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DAHA ESSA 
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Mr H Charlton appeared on behalf of the Appellant
Mr P Ratliff appeared on behalf of the Crown
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J U D G M E N T
1.	LORD JUSTICE HUGHES:  This appellant appeals against his conviction for a robbery committed on a suburban train.  
2.	At his trial his stance was that there had doubtless been a robbery but the robber was not him. 
3.	The issues raised by his appeal relate to directions given by the judge upon two topics.  The first was section 34 of the Criminal Justice and Public Order Act 1994, reliance upon facts not mentioned in police interview.  The second was the absence of any defence statement, for which the relevant statutory provisions are sections 5(5) and 11 of the Criminal Procedure and Investigation Act 1996 (as amended).
4.	The robbery took place on a Sunday afternoon, in January 2007, on a local train running between Clapton and Liverpool Street.  The victim was a Mr Newport who was sitting in the last carriage of the train.  There was only one other occupant of that carriage, unseen by Mr Newport until the train was underway.  During the trip that other man robbed Mr Newport at knife point of his mobile telephone, i‑Pod and wallet.  He took out from the wallet Mr Newport's driving licence, read his address and threatened that now that he knew where he lived: "If you grass me up come and find you."
5.	The robber got off the train at Bethnal Green but, having dismounted, came up to the window alongside where Mr Newport was sitting, banged on the window and reinforced that last threat by saying again that he knew where Mr Newport lived.  Mr Newport travelled on to Liverpool Street where there were police officers to whom he reported what had happened.
6.	The police were able to recover from Bethnal Green tapes from the closed circuit television cameras on the station.  They showed one man getting out of the last carriage of a train at the appropriate time and banging on the carriage window.
7.	The appellant was arrested about six weeks later and was interviewed.  After caution, in the conventional terms, he declined to answer any questions at all.  Subsequently a video identification procedure was conducted; Mr Newport identified the appellant as the robber.  At no stage prior to or during the trial was a defence statement of any kind served.
8.	At the trial it became apparent, thus for the first time, that the issue in the case was whether the appellant was the robber, not whether there had been a robbery.  It is worth saying that whilst that was always likely to be the issue, and may be was the most probable issue, it was not by any means inevitable that it would be the question.  For all anyone knew before the trial it might have been the appellant's case, for example, that he had been present but the robbery had been committed by somebody else, or that there had not been a robbery at all but simply some kind of argument which had been misrepresented by Mr Newport.  Nor are those by any means the only possibilities.
9.	It transpired at the trial that the appellant was in the habit of using this particular railway line.  His case was that although that was so, he did not use it on a Sunday, since there was no college that day.  He gave evidence at his trial to that effect and he denied being the person who robbed Mr Newport and being the person shown in the closed circuit television photographs getting off at Bethnal Green.  The description which Mr Newport had given before any video identification had taken place or he had sight of the closed circuit photographs was that the robber was black, about 6 feet in height, sporting two or three days' stubble growth on his face, in his early twenties, with an east London accent and wearing a long coat with a hood.  Those features all fitted the appellant.  Rather more significantly even than that, when he was arrested six weeks later, he was wearing a coat apparently identical to the one shown on the closed circuit television photographs being worn by the man who got off the train and who had been seen to go to the window of the train after doing so.  There were a number of features of the coat which were in common:  a manufacturer's logo; a reflective patch on the arm; headphones protruding from a particular place and, in addition, both the man in the photograph and the appellant on arrest were wearing identical light blue jeans and black trainers.  Beyond those things the closed circuit television photographs from Bethnal Green show, admittedly hooded but from the front, the face of the man who got off the train and banged on the window.  We have had the opportunity of seeing those photographs.  The appellant gave evidence that the man in the picture is not him.  The most that we say is that it is unsurprising that the Crown asserted that it recognisably was him. 
The Section 34 Direction 
10.	The appellant gave evidence that he had declined to answer any questions at the police station on the advice of his solicitor.  The solicitor had confirmed at the police station that that was his advice and that was in evidence at the trial.  There is no doubt that directions pursuant to section 34 can be complex.  The judge generally followed faithfully the steps which are conventionally taken.  He identified the fact relied on at the trial which had not previously been mentioned.  In this case that was limited to: "I was not there because and I don't use the train on Sundays."  There was no positive defence.
11.	Next, the judge correctly directed the jury that they must not convict the appellant either wholly or mainly on the basis of reliance on something which had not been said in interview and he reinforced that direction by saying to the jury that they might think that was obvious because if the prosecution case is so weak it does not call for an answer, then merely because someone is silent in a police interview, that could not convert a weak case into a strong one. ]
12.	Next, the judge correctly directed the jury that they were entitled, albeit not bound, to draw the adverse section 34 inference, only if, first, he could reasonably have been expected to say in the police station what he now said at trial, secondly, that the only sensible explanation for his not saying it in interview was that he had no answer or none that would stand up to scrutiny, and thirdly, that the case was otherwise sufficiently strong to call for an answer.  The judge reminded the jury of the appellant's case which was in evidence, namely that he had adopted the stance that he did at interview on following advice from his solicitor to that effect.  This was not a case in which either the appellant or the solicitor gave any further evidence as to what passed between the appellant and the solicitor in either direction.  Accordingly, in those circumstances, privilege continued to cover what they had said to one another.  
13.	Having told the jury that the appellant had said that he had relied on his solicitor's advice, the judge went on to say this:
"How does that fit in then with the direction that I have just given you?  When you consider the key question on this point, was it reasonable for the defendant to have said nothing in his interview about a defence which the defendant now says is true, consider also was it reasonable for the defendant to have relied on the solicitor's advice?  
If you accept the evidence that he was so advised...  this is obviously an important consideration, but it does not automatically prevent you from drawing any adverse conclusion from his silence ... a person given legal advice has a choice whether to accept or reject it ... 
...the defendant was warned by the words of the caution that any failure to mention facts which he later relied on at his trial might harm his defence and so it was the defendant who was under the caution and not the solicitor.  
So the key question, as I repeat, members of the jury, is whether in the circumstances that existed at the time of the interview it was reasonable for the defendant not to mention the fact that he now relies on, namely, 'I was not on that train.  Therefore I was not the robber'?" 
There had been a brief error of fact in that the judge had indicated the only evidence of the advice came from the appellant himself.  That was a mistake.  Counsel for the Crown very properly corrected it.  The judge acknowledged the correction and said to the jury: "I stand corrected members of the jury... it is an accepted fact that is what the solicitor advised."  He went on to say: 
"If you conclude that the defendant just latched on to that advice or even genuinely relied on it because that is exactly the advice he wanted because it suited his purpose to say nothing at the time, then it is open for you to conclude that it was not reasonable for the defendant to remain silent despite the advice given by the solicitor." 
14.	The nub of Mr Charlton's submission on behalf of the appellant is that, particularly in that last passage, the judge erred in failing to add words to this effect:
"Even if you are satisfied that the defendant may have had an answer to give, it could nevertheless be reasonable for him to rely upon and act upon his solicitor's advice to remain silent."
Says Mr Charlton, that was the substance of the appellant's case:  'I did have an answer but I had been advised not to give it'.  That, says Mr Charlton, was not properly before the jury.
15.	The potential semantic complications of a section 34 direction are considerable.  It is important to remember that the significance of section 34 does not lie in silence in interview, it lies in reliance at trial on something that should have been said in interview.  Secondly, it is important to remember that the acid question in any section 34 case is not:  was it reasonable to rely on the solicitor's advice?  Rather it is:  could the appellant reasonably have been expected to say what he now relies upon at trial?  The first question must be answered en route to the second, but the second is the one that matters.  We, for our part, are prepared to accept, at least for the purposes of argument, that there may sometimes be a case where an appellant may have good reason to rely on his solicitor's advice, even though he has in fact got an answer that could be given.  A simple case, but a very long way from the present one, might be that of a vulnerable or disabled appellant who would have real difficulty getting across what he wanted to say, even though there was something there to be said.  But there needs to be an element of realism in the approach to a subsequent analysis of what has been said in any particular case.  In this case, as in many others, no evidence was given of what advice or why the solicitor gave the advice that he did, nor of the terms in which he gave it.  The appellant can, of course, give such evidence if he chooses and he can call his solicitor if his evidence is not accepted.  If he does not do that, privilege is not, as we have previously said, waived (see R v Bowden [1999] 2 Cr App R 176).  But it nevertheless can be assumed, in the absence of evidence to the contrary, that the solicitor will have given proper advice and proper advice must include, first, the effect of section 34, and secondly, that an appellant exposes himself at least to the risk of criticism if he does not now say in interview what he later decides to say in court.  It is with the benefit of that advice that an appellant himself makes the decision whether to answer questions or whether to decline to do so and take the risk which goes with it.
16.	The judge told the jury, in the clearest terms, what the critical question was, namely:  'Could the appellant reasonably have been expected to say at the police station what he was now saying at trial?'  He went further and made it absolutely clear that the jury should draw no conclusion adverse to the appellant unless satisfied that the reason for his silence was that he had no answer that he was prepared to submit to scrutiny at that stage.  He added further words to that effect immediately after the paragraph which we have most recently cited and on which Mr Charlton particularly relies.  In those circumstances the judge said everything to this jury that it was necessary to say.
17.	We should add this.  There is no doubt that in the present case section 34 was engaged.  Mr Charlton realistically accepted that to the judge and told us so with characteristic frankness here.  It is not however in every case in which section 34 is engaged that it is always necessary to embark upon the rather complex direction which the section requires.  The significant thing about section 34 is, as we have already said, not the silence in interview but what is said at trial which should have been said before.  Where what is said at trial is no more than:  "I was not there", it would be sensible in most cases to pause for a moment in order to consider whether a section 34 direction really assists the jury or not.  In the present case the need for it was largely conceded.  The judge cannot be criticised for giving it and the terms in which he gave it were perfectly satisfactory.  Accordingly the principal ground of appeal and the one on which leave was given fails.
18.	The appellant seeks leave to renew a second ground relating to what was said about the absence of a defence statement. The basis of that application is Mr Charlton's assertion to us that the absence of the defence statement was upon advice not only of his solicitors but also of counsel himself.  We of course accept what we are told that that advice was tendered.  We should, we think, briefly say that we are at a loss to understand how any lawyer can properly give that advice to any defendant in the face of section 5(5) of the Criminal Procedure and Investigation Act.  Whatever may be the primary purposes of the statute, its requirement is that the accused give a defence statement to the court and the prosecutor.  In the present case it could hardly have been simpler.  It is not open to those who advise defendants to pick and choose which statutory rules applicable to the conduct of criminal proceedings they obey and which they do not.  
19.	What happened in the present case was that the appellant was cross‑examined by counsel for the Crown, it may be comparatively briefly, on the absence of a defence statement.  Accordingly the judge dealt with it.  He explained that under statute the other side was entitled to comment on the absence of the document.  He reminded the jury that counsel's principal point in cross‑examination had been: "This is the first time we have heard that you were not on the train" and he also reminded the jury of what the appellant's answer to that had been, namely:  "Well, I told my solicitor I was not on the train."  So the jury had that firmly before them.  We repeat, if the appellant had told his solicitor that it is impossible to see what justification there can have been for advice not to say it in a defence statement.  The only possible purpose of not saying it, which we are sure did not apply in this case, would be to enable the defendant to keep up his sleeve the possibility of advancing some different defence.  
20.	However that may be, the judge accordingly directed the jury that because of what the appellant said, it was clearly not established that the appellant was saying that what he was saying at trial for the first time.  He went on to say that the fact remained that there had been no defence statement and the jury was entitled to take into account that in drawing an inference about the case and whether the appellant was guilty or not.  They did not have to if they did not want to.
21.	The complaint which Mr Charlton wishes to advance is that the judge did not tell the jury that the absence of the defence statement was because of advice.  We agree that if that advice had been in evidence, the judge should certainly have dealt with and with its significance in a way no doubt roughly analogous to the way in which legal advice is dealt with in a section 34 direction.  But the short answer to the potential submission is that it was not in evidence.  The opportunity to put it in evidence had undoubtedly been there, and no doubt it would not have been contested if it had been asserted, but it was not.  In those circumstances the application for leave to appeal in relation to the direction upon the absence of the defence statement cannot succeed.  
22.	We should we think add that, just as in a case in which section 34 is engaged a measure of judgment is wise as to whether it really advances the case significantly or not, the same applies to the absence of a defence statement in a case in which, as it emerges at trial, no positive defence is advanced and merely an assertion is made that the appellant was not there.  In such circumstances the absence of the defence statement is not of zero significance; it is capable of leading to the conclusion that the appellant wished to keep all his options open and that because he was guilty.  But in such a case its significance may well be marginal and once again a degree of judgment is advisable in the decision both whether to embark upon cross‑examination about it and, if cross‑examination is embarked upon, the terms in which a direction be given.
23.	Lastly, we should deal with the argument which is advanced in Mr Charlton's written grounds and which he has endorsed before us, to the effect that section 11(5) of the Criminal Procedure and Investigations Act is incompatible with the right to a fair trial enshrined in Article 6 of the European Convention on Human Rights.  Certain it is that the right to silence is part of the right to a fair trial, as it is certain, even more importantly but distinctly, that the right not to incriminate oneself is.  Those two rights are different.  However, for the same reasons as section 34 is compatible with the European Convention, so is section 11(5) which entitles comment by the Crown on the absence of a defence statement.  Contrary to any submission otherwise, the use which can be made of section 11(5) is not without judicial control.  True it is that the Crown does not now need to make a preliminary application to the judge for leave to cross‑examine upon the topic.  That does not prevent the judge from interfering and stopping the cross‑examination if it is unfair, still less does it avoid the necessity for the judge to decide, if such cross‑examination has been embarked upon, the terms in which he directs the jury.  If the cross‑examination was unfair it is open to the judge to tell the judge to disregard it.  In those circumstances, there is no doubt that section 11(5) is perfectly compatible with the Convention.  
24.	We ought to add, if this case had been delicately balanced, we would have to have gone on to decide whether on its particular facts any errors of direction in the summing‑up carried with them the risk of an unsafe conviction.  This case is not finely balanced on the law, but alas it needs to be said that it was overwhelming.  It was, it was true, an identification case but the identification was extremely strongly supported.  It was supported by the fact that the appellant admitted that he was an habitual user of the train, by his possession of a coat and other clothing identical to that worn by the man who must have been the robber, by the fact that the appellant was of the same weight, general age and appearance as the robber, with similar facial hair and a similar voice and, most of all, by the photographs which either show the appellant or show someone who is uncommonly like him.  
25.	In those circumstances this appeal must be dismissed.