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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Hughes, R. v [2021] EWCA Crim 156 (04 February 2021) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2021/156.html Cite as: [2021] EWCA Crim 156

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		Thursday 4 February 2021

NOTE – THE RE-TRIAL IN THIS CASE HAS NOW TAKEN PLACE. ACCORDINGLY THIS JUDGMENT IS NO LONGER SUBJECT TO REPORTING RESTRICTIONS PURSUANT TO S.4(2) CONTEMPT OF COURT ACT 1981.

IT REMAINS THE RESPONSIBILITY OF THE PERSON INTENDING TO SHARE THIS JUDGMENT TO ENSURE THAT NO OTHER RESTRICTIONS APPLY, IN PARTICULAR THOSE RESTRICTIONS THAT RELATE TO THE IDENTIFICATION OF INDIVIDUALS.

LORD JUSTICE DAVIS:

Introduction

1. This is an appeal against conviction.
2. The essential complaint raised on this appeal is, first, that in the circumstances which had arisen at trial, the judge had no entitlement to give a direction pursuant to section 34 of the Criminal Justice and Public Order Act 1994; second, that he also had no entitlement to give a direction pursuant to section 35 of the Criminal Justice and Public Order Act 1994; and third, that even if the judge did have such an entitlement in either case, then his fusing together of his instructions to the jury on those matters in the summing-up ended up in a summing up which was legally incorrect. For all or any of these reasons, so it is said, the conviction arising is unsafe.
3. The appellant (having previously pleaded guilty to a count of dangerous driving) was tried before HHJ Medland QC and a jury in the Crown Court at Preston on other counts on the indictment, being a count of possessing criminal property and counts of conspiracy to supply a controlled drug of Class A, those being counts 4, 5 and 6 on the indictment. Following his conviction by the jury on those counts on 7 February 2020, he was sentenced to a total term of 6 years' imprisonment, with certain other ancillary orders.

Background Facts

4. The background facts, shortly stated, are these.
5. On 11 April 2018, at around 1 pm, a BMW car being driven by the appellant was seen by various members of the public and police officers to be driving dangerously along roads in the Blackburn area. The prosecution case was that the co-accused, a man called Whicker, was sitting in the front passenger seat, and another co-accused, a man called Khan, was in the back passenger seat. Officers took steps to try to stop the vehicle, which drove off at high speed along residential roads before ending up in a cul-de-sac. When the vehicle stopped, the occupants got out and ran away in different directions; but they were subsequently apprehended.
6. All three men were searched. The following items were found: the appellant was found in possession of £431 in cash and keys to the BMW car. The co-accused Khan was found in possession of £291 in cash, and, when searched at the police station, a bag of drugs was found in a sealed plastic bag in his mouth. The co-accused Whicker was found in possession of certain keys, which transpired to be keys for an address in Monk Street in Accrington. When examined, the drugs found in the bag taken from Khan's mouth were found to include seven wraps of heroin, eight wraps of crack cocaine and three wraps of ordinary cocaine.
7. All three of the men were interviewed. The appellant answered no comment or remained silent in respect of all questions that were asked of him.

The trial

8. The prosecution case was that the appellant had agreed, together with his co-accused, to supply Class A drugs and the money in his possession was linked to the drug dealing.
9. Amongst other things, the prosecution relied upon the following matters: the events of that particular day, namely the chase and the stopping of the car; the fact that the co-accused had been driven by the appellant; the fact that the co-accused were also in that car; the fact that all three had run away; and the fact that Khan was found to be in possession of a bag containing Class A drugs. Moreover, there had been a search of Whicker's address at Monk Street in Accrington and various items were seized from there, as well as a selection of mobile phones. The appellant's and Whicker's fingerprints were discovered on a plastic bag there, which contained a number of other plastic bags on which there were traces of cocaine. Further, the prosecution sought to rely on various text messages between the appellant and the co-accused. In addition, when the appellant's phone was examined, it was found to contain a list, which the prosecution was to say at trial was a "tick" list or debtors' list for monies owed for drugs supplied.
10. The defence case was to the effect that he was not guilty of the offences alleged or at all. As we have said, he had not given any answers in interview. Further, he gave no evidence at trial. His previous defence case statement had in substance been to the effect that the prosecution were put to proof of their case. It was submitted on his behalf at trial that the case against him was "not as strong as the prosecution claim" and that there were alternative conclusions which could be drawn from the evidence. In the result, as we have said, the jury convicted the appellant. The co-accused Khan and Whicker were also convicted. Khan had given evidence at trial. (On our query, we were told that it seems that trial counsel for the appellant had not asked any questions of Khan.) Whicker was tried in his absence.
11. There was a very brief discussion between counsel and the judge before speeches about the directions that were to be given in the summing up. We will come on in due course to say what the judge actually did to direct the jury when it came to the issues of silence in interview and of not giving evidence at trial.
12. At all events, this court has a transcript of closing speech of counsel then appearing for the defendant -- not, we emphasise, Mr Dein QC, who appears on his behalf on this appeal. In effect, the closing speech of counsel was an elaborate statement of the requirement resting on the prosecution with regard to the burden and standard of proof. Counsel appearing for the defendant on that occasion advanced no positive case at all in the course of her speech, on the face of the transcript. In the course of her speech, counsel did refer, briefly, to the evidence of the co-accused Khan, he having elected, as we have said, to give evidence at trial. Amongst other things, counsel in her closing speech said this:

i. "Now you have heard evidence from Mr Khan in relation to those matters. Well, the prosecution say it is because they run away; one reason. They decamp the car and they run away. You heard from Mr Khan an alternative explanation in terms of why Mr Hughes ran away, having no licence, but people can run away, you might think, for all sorts of reasons ..."

13. Counsel then referred to the evidence of Mr Khan as to why he himself ran away and as to him having drugs on him. Counsel then said this:

i. "Well, in the past he [Khan] has been involved in drugs. I am not going to make any submissions in relation to that ..."

14. The only other reference to the evidence given at trial from Khan came a little later on in counsel's speech, when she said this:

i. "Well, I have already hit upon or made submissions in relation to the lack of fingerprint evidence, but you have also heard the evidence of Mr Khan, have you not? You have also heard what he has had to say about matters, and so if you form collectively the conclusion that you are not really sure what went on that day in terms of those drugs, you are not sure whether Mr Hughes had come to any agreement regarding those drugs and that there they were going to be involved in some kind of dealing or looking for people to deal, then the true verdict will be one of not guilty."

The summing up

15. This had been a short trial and the judge summed up shortly and concisely. That is not a criticism, that is a commendation. But necessarily the judge had to deal with the various legal topics calling to be addressed. He had previously provided proposed written directions to counsel, and the discussion of them, as we have indicated, had been very short indeed. No counsel raised any objection to the way in which the judge was proposing to sum up to the jury, including on silence at interview and silence at trial.
16. So far as silence in interview and not giving evidence at trial was concerned, the judge in due course said this to the jury:

i. "Now a direction in respect of [H] who did not answer questions in interview and did not give evidence. [H] did not answer questions in interview, he did not give evidence in this trial. It is important to remember that he was not obliged to do either thing. However, that legal right to silence in interview and the legal right not to give evidence are not unqualified rights. In both instances you are entitled to hold against him that he did not, you are not obliged to hold it against him, it is entirely a matter for your decision as the judges of the facts of the case.

ii. You would only hold it against him if you thought it right to do so and if you are sure of the following matters relating to his silence in interview: A, that he could reasonably have been expected to answer there and then the questions which were put to him; B, the case against him was at that point strong enough to call for an answer; and C, that he did not then answer any questions because he had no answer or none which would stand up to scrutiny and investigation by the police.

iii. If you do hold his silence in interview and/or that he did not give evidence in the trial against him, you must not convict him wholly or mainly on account of either or both of those features. It or they may amount to some additional support for the case against him."

17. The judge then turned to the position of the co-accused Khan.
18. Thus, as can be seen, the judge not only gave both a direction by reference to section 34 and by reference to section 35 of the 1994 Act, but also, as it were, combined those directions together into one short but composite legal direction -- a most unusual procedure, in the experience of this court.

Submissions

19. The principal complaint of Mr Dein QC is to this effect. Quite simply the appellant had never sought subsequently to rely on facts or matters at trial which had not been raised by him in interview. Instead, he had been silent in interview and then had been silent at trial. He had, indeed, advanced no positive case at trial. Accordingly, it was not justified to give any section 34 direction at all.
20. Mr Dein draws attention to one aspect of the direction that is conventionally given when a section 34 direction is given, namely identifying the facts and matters subsequently relied upon but which have not been raised in interview. Here, Mr Dein points out, not only did the judge fail to identify those matters to the jury, but, as Mr Dein submits, in truth there were no such matters which could have been identified. Accordingly, says Mr Dein, there was no legal basis for giving a section 34 direction at all. On the contrary, the jury should positively have been instructed that no adverse inference arose from his silence in interview: see McGarry [1999] 1 Cr App R 377. But, he goes on to say, not only had the judge not given that direction, but instead he had positively instructed the jury that they were entitled, if they so chose, to take his silence in interview into account in support of the prosecution case.
21. Mr Dein further went on to make complaint, in any event, about the direction given in the summing-up by reference to section 35 of the 1994 Act, the appellant having given no evidence (and we can take it that he will have been given the appropriate warning at the time during the course of the trial).
22. Mr Dein did as an initial point suggest that the situation in this case was comparable to the situation arising in the case of McManus [2001] EWCA Crim 2455; and consequently here too, he said, the judge had no justification in giving any section 35 direction at all. That particular submission we do not accept. In McManus, all the relevant facts had been agreed. The only issue was whether those facts gave rise to the offence in law of keeping a disorderly house. On that issue, the defendants in that case could have given no meaningful evidence. That is not the position in the present case, where plainly the appellant could, if he had chosen, have given meaningful evidence as to whether or not there had been a conspiracy as alleged.
23. But in any event Mr Dein's real complaint was that, by fusing the directions as he did, the judge not only ended up, as he submitted, with an overall confusing direction to the jury, but in addition had failed to include important criteria indicated in the case of Cowan [2003] EWCA Crim 2668 as being essential if a section 35 direction is to be given.

Disposal

24. We have to say, we see the greatest force in the objections of Mr Dein, viewed overall.
25. On no view can this be said to have been some kind of ambush defence or some kind of late defence seeking to construct or mould evidence to facts that have inconveniently emerged. That being so, then, as the decision of the court in the case of Brizzalari [2004] EWCA Crim 310 indicates, the court should generally be cautious before giving a section 34 direction at all. But in the present case it goes further than that: because here it is impossible to identify any facts positively sought to be relied upon at trial which should have been raised earlier in interview.
26. Ms Organ -- who, we stress, had not herself appeared in the court below -- valiantly sought to try to find some positive assertions in the closing speech of counsel for the defendant at trial and in particular in the passages which we have read out. She sought to rely on the decision of the House of Lords in the case of Webber [2004] UKHL 1 as authority for the proposition that where a defendant who has not himself given any explanations nevertheless seeks positively to rely on explanations in evidence given by a co-accused then a section 34 direction may be justified.
27. But reading the transcript of the speech of counsel as a whole, we consider that that is not the position here. In effect, all trial counsel was seeking to say was that the Crown had the burden of proof and they were unable to discharge that to the criminal standard. Counsel was not seeking positively to associate herself with the evidence given by the co-accused. For example, Ms Organ sought to suggest that counsel for the appellant had relied upon the co-accused's suggestion that the appellant had run away because he was worried about having no licence. But one can see from counsel's speech that she was in fact rather disassociating herself from that suggestion (running away because he had been observed driving dangerously was surely, in fact, altogether a more plausible reason from the defence point of view) and was suggesting that there might in fact be all sorts of other reasons. Likewise with the submissions as to the existence of a conspiracy – counsel was in substance taking a burden and standard of proof stance by reference to the prosecution evidence.
28. In our view, therefore, taken overall, the position here in substance corresponds to the position that arose in Moshaid [1998] Crim LR 420 and other such cases. Quite simply, a section 34 direction could not have been justified on the position that arose. Consequently the judge should have directed the jury not to draw any adverse inference from silence in interview. But so far from doing that, the judge positively instructed the jury that they were entitled to do so.
29. Although we accept, as we have indicated, that the judge was entitled to give a section 35 direction, we also think that there is considerable force in Mr Dein's further objections in this regard. We think it was unfortunate that the judge ran his section 34 and section 35 directions together in the way that he did. In doing so, and while clearly he was trying to be concise, he did omit certain important elements of the direction required to be given under section 35. Indeed, it will also be noted in his oral instruction to the jury (though it may not necessarily correspond to what he had written out) the judge had said:

i. "You would only hold it against him if you thought it right to do and if you are sure of the following matters relating to his silence in interview" (emphasis added)

30. The judge thus did not in that instruction extend those identified matters to silence at trial.
31. Consequently we agree with Mr Dein that not only were important criteria left out for the purposes of the section 35 direction, but further, that the jury may potentially have been misled by the instruction that they had been given.
32. We are therefore left with this position. First, a section 34 direction was given to the jury when it should not have been. Second, a section 35 direction was given to the jury in terms which were significantly incomplete and to some extent confusing. We cannot, in this regard, think that it is a complete answer to this appeal that -- wrongly, in our view -- no counsel at the time objected to the judge. Indeed, Ms Organ very fairly did not seek so to argue. If this was a fundamental error of law then that has to be confronted; and the consent of counsel to or acquiescence of counsel in that error cannot provide the prosecution with a complete answer in circumstances such as these.
33. Ms Organ -- and really this was perhaps her principal point -- said that nevertheless, even if there was error in the summing-up, this conviction is safe. She drew attention to the background facts. She said that this was a short and straightforward trial; the reality was that this was an overwhelming prosecution case; and if correct directions had been given to the jury, a conviction would inevitably still have resulted.
34. But whether a case is short and straightforward or whether a case is long and complex, in either such situation a defendant is entitled to have correct instructions in law given to the jury in a summing-up. The consequences to any defendant of a material legal error in a criminal trial even if it is short may be just as great as the consequences to a defendant after a long and complex trial. Issues such as silence in interview and issues such as not giving evidence at trial are highly important matters -- indeed, they may be fundamental to any criminal trial. Where those situations arise, the matters should be discussed fully between counsel and judge; and counsel should not supinely acquiesce in what a trial judge is proposing, however experienced that trial judge may be. It is at all events essential that sufficient and correct instructions in law are given to the jury in the summing up of very aspects such as these. This is no mere technicality. To the contrary, it is of the greatest importance. Indeed, it might be said that that importance is, if anything, only enhanced where a defence case is potentially very weak.

Conclusion

35. In the present case this court cannot preclude the possibility that, having been told by the judge that they were entitled, if they chose, to rely on silence in interview as support for the prosecution case, that may of itself have proved the tipping point so far as the jury were concerned in deciding on the verdict of guilty. Or it may be that that instruction, when combined with the rolled-up section 35 instruction, may have proved decisive for the jury. We think it would be wholly wrong in such circumstances to accede to the submission that these convictions are nevertheless to be regarded as safe. In so saying, we do acknowledge that this was a very powerful prosecution case on the face of it. Nevertheless, for the reasons we have given, these convictions cannot be regarded as safe. Accordingly we must quash the convictions. We allow the appeal accordingly.
36. Retrial ordered.