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APPELLATE COMMITTEE Regina v. Webber (Appellant) (On Appeal from the Court of Appeal (Criminal Division))
REPORT Ordered to be printed 22 January 2004 LONDON (HL Paper 22) TENTH REPORT 22 JANUARY 2004 Regina v. Webber (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) ORDERED TO REPORTThe Committee (Lord Bingham of Cornhill, Lord Slynn of Hadley, Lord Hobhouse of Woodborough, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe) have met and considered the cause Regina v. Webber (Appellant) (On Appeal from the Court of Appeal (Criminal Division)). We have heard counsel on behalf of the appellant and respondent. 1. This is the considered opinion of the Committee. 2. In this appeal the House is called upon to consider the meaning of the words "any fact relied on in his defence" in section 34(1)(a) of the Criminal Justice and Public Order Act 1994. The point of law certified by the Court of Appeal to be one of general public importance is expressed in this way:
3. Section 34, so far as relevant to this appeal, provided:
(2) Where this subsection applies - (a) a magistrates' court, in deciding whether to grant an application for dismissal made by the accused under section 6 of the Magistrates' Courts Act 1980 (application for dismissal of charge in course of proceedings with a view to transfer for trial); (b) a judge, in deciding whether to grant an application made by the accused under - (i) section 6 of the Criminal Justice Act 1987 (application for dismissal of charge of serious fraud in respect of which notice of transfer has been given under section 4 of that Act); or (ii) paragraph 5 of Schedule 6 to the Criminal Justice Act 1991 (application for dismissal of charge of violent or sexual offence involving child in respect of which notice of transfer has been given under section 53 of that Act); (c) the court, in determining whether there is a case to answer;
This is the first of a series of sections of the Act having related objects. Section 35 permits, in closely defined circumstances, the drawing of adverse inferences from the failure of a defendant to testify or answer a question at his trial. Section 36 permits, again in closely defined circumstances, the drawing of adverse inferences from a defendant's failure or refusal to account for an object, substance or mark. Section 37 has similar effect where a defendant fails or refuses to account for his presence at a particular place. Even where the qualifying conditions under these sections are fully satisfied, it is always for the court or jury to decide whether in all the circumstances it is proper to draw any inference adverse to the defendant. But the sections provide that the silence of the defendant need not be treated as neutral. So much is made clear to a suspect by the terms of the caution, prescribed in paragraph 10.5 of Code C of the codes of practice made under the Police and Criminal Evidence Act 1984:
The facts 4. The appellant (Robert Webber) was tried with Paul Ashton and Paul Lyons on an indictment containing four counts. Count 1 charged the three men with conspiracy to murder contrary to section 1(1) of the Criminal Law Act 1977. The particulars of the offence were that between 1 January 1995 and 12 October 1996 the defendants conspired together to murder Terence Mitchell. Count 2 was an alternative count: it was similar to count 1 save that it charged a common law conspiracy to inflict grievous bodily harm. Count 3 charged Ashton and the appellant with possession of a firearm (a Ballester Molina .45 calibre self-loading pistol) with intent to endanger life on 12 January 1996, contrary to section 16 of the Firearms Act 1968. Count 4 (on which the appellant was acquitted) raises no issue pertinent to this appeal. He was convicted on counts 1 and 3. 5. The prosecution case on the conspiracy counts was based on three incidents of which the first took place on 11 July 1995. On that date, according to the prosecution evidence, Mitchell was attacked with a bayonet and seriously wounded. The attacker escaped in the appellant's Mercedes car. The appellant was said to be driving, with Ashton in the passenger seat. Mitchell later identified Lyons as his assailant. Mrs Stephenson, who was at the time a friend of the appellant, testified that she had heard the appellant and Lyons talking about Lyons having attacked Mitchell. 6. When interviewed under caution in the course of the police investigation into this incident the appellant said that he was not responsible for this attack and had not been present. He denied involvement in the conspiracy and in any plan to injure Mitchell or his associates. By agreement, an edited summary of this interview was placed before the judge and the jury which misleadingly omitted reference to the appellant's denial of being present. The appellant was not asked in interview about the conversation which Mrs Stephenson said she had heard. At trial it was put to Mitchell on behalf of the appellant that he had invented his evidence that the appellant and Ashton had been in the Mercedes in the vicinity, and to Mrs Stephenson that she was lying about the overheard conversation. Neither of these suggestions was accepted by the witness. 7. The second of the three incidents relied on by the prosecution took place on 15 August 1995. The prosecution case was that Mitchell was filling up his car at a petrol station when the appellant drove a car straight at him, hitting Mitchell's car and causing him to fall to the ground. Ashton, who was in the passenger seat of the appellant's car, got out and drew a knife. Mitchell sought refuge in the garage shop. Mrs Stephenson testified that the appellant had told her that he had pulled into the garage to fill up and that Ashton had pulled out a knife and chased Mitchell into the shop, intending to frighten him. 8. When questioned about this incident by the police the appellant made no comment save to deny involvement in any conspiracy or plan to injure Mitchell or his associates. At trial it was put to Mitchell on behalf of Ashton that Mitchell had been carrying a knife and on behalf of the appellant that the contact between the two cars had been minimal. Ashton, who was the first defendant on the indictment, gave evidence that he and the appellant had driven on to the forecourt; that Mitchell, who was already there, had produced a knife; that he (Ashton) had not produced a knife; and that there had been no violence. There was no cross-examination of Ashton on behalf of the appellant. In his closing speech the appellant's counsel adopted Ashton's evidence that Mitchell had been carrying a knife. 9. The third incident relied on by the prosecution to support the conspiracy counts took place on 12 January 1996, and the third (firearm) count related to this incident alone. The prosecution case was that on that date Mitchell and an associate named Watson had pulled up outside Watson's house in a van. The appellant then drove up in a Jaguar car, from the back seat of which Ashton had fired a gun. A prosecution witness identified the appellant as the back seat passenger. Mrs Stephenson testified that the appellant had told her about this incident. 10. When questioned by the police the appellant denied being present at the scene of the shooting. Mitchell was cross-examined on behalf of the appellant and it was put to him that the appellant had instigated, through a named third party (Ruddick), a meeting with Watson; that the purpose of the meeting was to ambush the appellant when he arrived; that Ashton was not the driver of the Jaguar; that the appellant had been sitting in the back passenger seat; that Mitchell and his team had fired first; and that the Jaguar had then driven off with the appellant firing a shot into the air. All these suggestions were denied by Mitchell. Watson was cross-examined on behalf of the appellant and it was put to him that Ruddick had got in touch with him (Watson) to try and arrange for him to meet the appellant; that a meeting was arranged at his (Watson's) house; that this was a planned ambush; that the Jaguar had been driven by a man called Shaun; that the appellant had been in the back passenger seat; that Watson and his associates had fired first; that the appellant's car had then turned round; and that the appellant had then fired some shots. None of these suggestions was accepted by Watson. 11. When summing up Ashton's case to the jury the trial judge (Clarke J) gave a conventional direction on the application and effect of section 34 of the 1994 Act. No criticism is made of that direction and we need not quote its terms. When he directed the jury on the appellant's case, the judge dealt with the three incidents seriatim. With reference to the incident of 11 July 1995 he said:
The judge was misled into giving this direction by the incomplete summary placed before him, but as appears from the passage quoted he discouraged the jury from drawing any adverse inference. 12. In dealing with the incident of 15 August 1995 the judge summarised Ashton's evidence, pointed out that Ashton had not mentioned these matters when interviewed and reminded the jury of his section 34 direction. With reference to the appellant he said:
13. On the incident of 12 January 1996 the judge directed the jury in these terms:
14. The appellant did not give evidence at the trial. The judge accordingly directed the jury under section 35 in relation to that failure. No complaint is made of that direction, and it gives rise to no issue in the appeal. The issue concerns the judge's directions under section 34 because (1) the appellant's case on the first incident, put to Mitchell by the appellant's counsel, was that the appellant had not been present and the judge was misled into understanding that the appellant had not mentioned that very significant fact in interview; (2) the appellant's case on the second incident, in part put to Mitchell by the appellant's counsel and in part by adoption of evidence given by Ashton, was that Mitchell had had a knife and that contact between the cars had been minimal, matters which the appellant had not mentioned when interviewed; (3) the appellant's case on the third incident, put to Mitchell and Watson by the appellant's counsel, was that the appellant had been present, that Mitchell and his associates had fired first and that the appellant had fired a shot or shots in the air, all of these being matters which the appellant had not mentioned in interview, when he had denied being present at all. Both sides are agreed, rightly, that (depending on all the facts and circumstances of the case) section 34 may be applicable if a defendant fails to mention when questioned under caution by a constable a significant matter on which he seeks to rely in his defence at trial (a) by giving evidence of it, or (b) adducing evidence of it from another witness, or (c) putting it to a prosecution witness who accepts it. But the appellant's defence at trial did not rely on his own evidence, or any evidence called by him or any admission obtained from a prosecution witness. Can section 34 apply where the matters which the defendant failed to mention when interviewed are matters put to, but not accepted by, prosecution witnesses or matters of which evidence is given by a co-defendant which the defendant, in the submissions made by his counsel, adopts? 15. The appellant contends for a negative answer to that question. He argues that section 34 is directed to evidence, and that the suggestions of counsel are not evidence unless or until accepted by a witness. If the rule were otherwise, trial judges and counsel would be gravely embarrassed, since it would be hard in borderline cases to know whether questions were of a probing, testing, nature, putting the prosecution to proof, or whether they amounted to the putting of a positive case. In no case until this had section 34 been authoritatively held to be applicable in circumstances such as the present. The prosecution contend that the affirmative answer to this question given by the Court of Appeal ([2002] EWCA Crim 2782, 6 December 2002, unreported; Mantell LJ and Treacy and Simon JJ) is correct. It is one thing for counsel to ask questions of a probing, testing, putting-to-proof nature ("Are you really sure you saw your assailant for half a minute?"; "When you picked out the defendant on the identification parade, you weren't really sure he was your assailant, were you?"). It is quite another for counsel, acting (as must be assumed) on the instructions of the client, to put to witnesses specific suggestions (often prefaced by "I put to you" or "I suggest") as to what occurred. Such suggestions are matters on which the defendant relies, whether or not he supports them by his own or other evidence and whether or not prosecution witnesses accept them. The same is true if the defendant's counsel, again acting (as must be assumed) on the instructions of the client, adopts evidence given by a co-defendant. The development of the law 16. In approaching the issue in this appeal it is instructive to trace in brief outline the development of the law. Until the enactment of section 34, judges and juries were severely constrained by a common law rule applicable in England and Wales against drawing an adverse inference against a defendant if he failed to mention during police questioning a matter on which he later relied in his defence. This rule was applied by the Court of Appeal (Lord Parker CJ, Salmon LJ and Fenton Atkinson J) in R v Sullivan (1966) 51 Cr App R 102, a case in which the defendant neither answered questions when interviewed nor gave evidence. Giving the judgment of the court, Salmon LJ said (at pp 104-105):
Thus the court held to be a misdirection a train of thought which would in its opinion inevitably have occurred to any juror with any common sense at all. 17. The Court of Appeal (Viscount Dilhorne, Lord Scarman and Jupp J) applied the same rule in R v Gilbert (1977) 66 Cr App R 237 where the defendant to a charge of murder claimed in evidence at trial to have acted in self-defence, an explanation he had not mentioned in a police statement under caution. The trial judge had invited the jury, in the exercise of their common sense, to consider whether it was remarkable that the defendant had said nothing about self-defence. Giving the judgment of the court, Viscount Dilhorne said (at page 243):
At page 244 he repeated:
The application of the rule was considered (page 243) to be in some cases "inconsistent with the exercise of common sense" and the rule itself to be (page 244) "unsatisfactory". The court suggested (page 244) that it might not be a misdirection to say simply "This defence was first put forward at this trial" or words to that effect, but Mirfield has persuasively asked (Silence, Confessions and Improperly Obtained Evidence, 1997, p 241) "What possible purpose could this serve other than to invite the jury, in 'a nod is as good as a wink' fashion, to take this into account when assessing the weight of the defence?" 18. Even before R v Gilbert, the unsatisfactory state of the law on this question had attracted the attention of the Criminal Law Revision Committee, which in its Eleventh Report (Cmnd 4991, June 1972) recommended restriction of what it called in paragraph 28 "the so-called 'right of silence' enjoyed by suspects when interrogated by the police". In a draft bill annexed to the report, the committee proposed a clause similar in its terms to section 34 and explained (in paragraph 33 of the report) that the words "any fact relied on in his defence in [the] proceedings", arrived at after a good deal of discussion, were "intended to apply to any definite statement made by a witness at the hearing and supporting the case for the defence". This would suggest an evidential approach to the provision, such as the appellant supports. But some doubt is thrown on this approach by paragraph 36 of the report, where the committee envisage that it will usually be sufficiently clear from cross-examination of the witnesses for the prosecution whether a fact is being relied on by the defendant in his defence. The committee proposed that it should be permissible to draw adverse inferences when determining whether there is a case to answer. 19. Effect was not given to the recommendation of the Criminal Law Revision Committee in England and Wales at the time, but article 3 of the Criminal Evidence (Northern Ireland) Order 1988 (SI 1988/1987) was in terms very similar to what is now section 34. In R v McLernon [1992] NI 168 it was argued that the words "any fact relied on in his defence" in that article meant that it could apply only where a fact which the accused relied on was advanced by the accused in the witness box at the trial, or by a witness called at the trial on behalf of the accused. It was also argued that the accused had not relied on any fact in his defence but had merely relied on the weakness of the prosecution case. The Court of Appeal of Northern Ireland (Hutton LCJ, Higgins and Carswell JJ) rejected those submissions. Giving the judgment of the court the Lord Chief Justice said:
The correctness of those rulings cannot be doubted. It is, however, clear that the court was not called upon to decide whether article 3 could apply where a suggestion is put to a prosecution witness who does not accept it, and the court cannot be understood to rule out that possibility. That the court might have accepted the possibility gains some support from R v Devine (Court of Appeal of Northern Ireland, 13 May 1992, unreported) where the trial judge drew an adverse inference under article 3 and the defendant complained that he had not relied on any fact in his defence but had simply tested the prosecution case. In upholding this submission Hutton LCJ said:
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