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Judgments - Regina v. Webber (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

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    20.  Section 34 has, predictably, spawned a considerable body of Court of Appeal authority. It is unnecessary to comment on the general guidance given in R v Condron and Condron [1997] 1 Cr App R 185 (save to observe that the summary in paragraph 15-338(c) of the 2003 edition of Archbold omits the potentially significant qualification made by Stuart-Smith LJ at p196A) and R v Argent [1997] 2 Cr App R 27.

    21.  In R v Moshaid (Court of Appeal, 27 January 1998, unreported) the appellant was convicted of supplying heroin. He and another (who had pleaded guilty) had together been filmed on video. The appellant did not give evidence but contended that it was the other, not he, who had supplied the heroin and received the price. The court held that a section 34 direction had been inappropriate:

    "As already noted, the appellant elected not to give, or call, any evidence at 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'."

    What the defence had done, it seems, was invite the jury to interpret a poor quality film in a certain way, which could scarcely engage the operation of section 34(1), but it seems that the court adopted an evidential approach to the subsection.

    22.  In R v Nickolson (Court of Appeal, unreported, 4 February 1998) the appellant was convicted of indecently assaulting his young stepdaughter, on whose nightdress a small amount of seminal staining had been found. When he gave evidence at the trial he was asked by his counsel if he could think of any way in which semen might have found its way onto the nightdress, and he proffered an explanation. Since the appellant had not mentioned this explanation when questioned the trial judge gave the jury a section 34 direction. As the Court of Appeal held, the judge was plainly wrong to do so. At the time he was questioned the police and the appellant were unaware of the staining, and he could not reasonably have been expected to mention an explanation of a phenomenon of which he was unaware. That was a conclusive objection to application of the section. But the court did not, in the judgment given by Maurice Kay J, stop there, but continued:

    "Thirdly, the wording of section 34(1)(a) refers to a failure 'to mention any fact relied on in his defence'. At no stage in his defence did the appellant assert as a fact that the seminal staining was due to a visit by the complainant to the lavatory. He was asked whether he could think of any explanation as to how the staining came to be on the nightdress. His answer about the complainant's visit to the lavatory was a proffered explanation but was not and could not be construed as a fact. It was more in the nature of a theory, a possibility or speculation. As it happens, the appellant had told the police in interview that he had masturbated in the bathroom just after leaving the complainant's bedroom. It is interesting to observe that whereas the language of section 34(1)(a) is about a failure to mention 'any fact relied on in his defence', the caution prescribed by the Code of Practice states:

    'It may harm your defence if you do not mention when questioned something which you later rely on in court.'

    We observe that in his directions to the jury the learned trial judge at various stages referred to 'something' and 'failure to mention the matter' whilst elsewhere referring to the failure to mention 'the fact'. In our judgment it is important that section 34 should be confined to its express terms, namely the failure to mention 'any fact relied on in his defence'. We observe that the Judicial Studies Board specimen directions scrupulously preserve and limit the direction to the word 'fact'."

    In commenting on this decision ([1999] Crim LR 61, 62), Professor Birch suggested that

    "It may be going too far to say that any speculation by D in cross-examination by which he seeks to explain away the prosecution case does not amount to reliance 'in his defence' on the facts forming the basis of the speculation."

    23.  A direction under section 34 was given by the trial judge in R v Bowers, Taylor and Millan (Court of Appeal, 13 March 1998, unreported) and it was complained by Bowers and Millan that the direction was impermissible. The ground of complaint was that they had not relied on any fact by way of defence, but had simply put the prosecution to proof. The court adopted an evidential approach:

    "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."

    The section does not, however, refer to establishing a fact, but simply to relying on it.

    24.  No help is gained from R v Reader, Connor and Hart (Court of Appeal, 7 April 1998, unreported) where Reader gave a no comment interview and did not testify at trial, because it was common ground that his counsel had done no more than put the prosecution to proof.

    25.  Section 34 was relied on by the trial judge when ruling that there was a case to answer in R v Hart and McLean (Court of Appeal, 23 April 1998, unreported). He was held to have been wrong to do so. Giving the judgment of the court, Hutchison LJ said:

    "The sort of circumstances we conceive to which paragraph (c) of subsection (2) [of section 34] 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. It does not apply in circumstances such as obtained in the present case where nothing had been relied on by the defence which could bring the section into play."

    It does not appear from the judgment that the defence had put any positive case to prosecution witnesses.

    26.  The defendant in R v Mountford (Court of Appeal, unreported, 21 December 1998) was convicted of possessing a class A drug with intent to supply. His defence at trial was that another man (Williams) was the dealer and he was merely a purchaser. He had not mentioned this to the police when questioned, on the ground (he said) that he did not want to land Williams in trouble. The trial judge directed the jury under section 34. It is not clear what complaint was made of the direction, but the court ruled that no direction should have been given:

    "The judge gave no guidance to the jury as to how they should approach this issue. '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 upon the other evidence in the case. A verdict of 'guilty' would obviously establish that 'the fact' not mentioned was untrue and accordingly that the explanation for not mentioning it was equally untrue. In this case, as it seems to us, the evidence which resolved the section 34 issue was the very evidence which resolved the issue in the case and therefore determined the verdict. There was, in our judgment, no evidential basis upon which the section 34 issue could have been resolved as an independent issue in the case, thus permitting an ensuing adverse inference to be used as some additional support for the prosecution's case.

    This was a case which turned on the jury's assessment of the credibility of each man - Williams (the prosecution witness) and Mountford (the then defendant). It was accordingly particularly important for the jury to have had spelt out to them that as a matter of common sense there was, for the prosecution, no mileage in the section 34 point. The jury were left to make what they could of it. It may be that they realised that it would have been unfair to draw an adverse inference given the particular circumstances. Of that, however, we cannot be sure. Superficially the point has its attractions. Our conclusion is that the verdict cannot be regarded as safe, and for that reason the conviction must be quashed."

    We do not find it altogether easy to understand this reasoning. The jury had to decide whether the appellant was in possession of the drug with intent to supply. Had they concluded that only one of the two men was or might be a supplier and that that one was or might have been Williams, that would have defeated the prosecution. But if Williams was the supplier, and the jury were not impressed by the appellant's explanation for not naming him, it was open to the jury to regard the appellant's failure to mention this fact as a pointer towards the untruth of that explanation, thus strengthening the prosecution case and weakening his own. Section 34 applied, and the direction was rightly given. The very similar reasoning and decision of the Court of Appeal in R v Gill [2001] 1 Cr App R 160 are open to the same criticism.

    27.  Attention was drawn to a passage in R v Bowden [1999] 2 Cr App R 176, 181, where the Court of Appeal, referring to sections 34-37, said:

    "The object of these sections was to weaken the protection which criminal defendants had previously enjoyed against the drawing of inferences adverse to them from such failures and refusals in the circumstances specified. Proper effect must of course be given to these provisions. But since they restrict rights recognised at common law as appropriate to protect defendants against the risk of injustice, they should not be construed more widely than the statutory language requires. There is nothing in any of these sections to suggest that Parliament intended in any way to modify the existing law on legal professional privilege."

    We would not wish to modify that statement in any way. It is indeed important, if the statutory provisions are not to be an instrument of unfairness or abuse, that the statutory safeguards are strictly observed, that jury directions are carefully framed and, in cases under section 34, that care is taken to identify the specific facts relied on at trial which were not mentioned during questioning. But it is worthy of note that the statement was made with particular reference to legal professional privilege.

    28.  In R v Wisdom and Sinclair (Court of Appeal, 10 December 1999, unreported) an important point was established: that rarely if ever could a section 34 direction be appropriate on failure to mention an admittedly true fact at interview. Since the adverse inference in question is that a matter not mentioned at interview is likely to be untrue, there is no room for the inference if that matter is agreed to be true. This approach was followed by the Court of Appeal, correctly, in R v Kenneth James B (23 October 2003, unreported).

    29.  A section 34 direction given by the trial judge in R v Hearne and Coleman (Court of Appeal, 4 May 2000, unreported) was the subject of an unsuccessful challenge on appeal. In giving judgment, the court said (in paragraph 10):

    "Section 34 is designed, in part at any rate and perhaps principally, to deal with the sort of situation which not infrequently arises where a defence is advanced which has never been previously indicated even though there was sufficient opportunity to do so, as from the provisions we have read make clear would be the case where there has been an interview under caution. It is to allow the jury, in a proper case and subject to safeguards, to draw an inference from the fact that the defence advanced at trial has not been previously entered, the obvious inference being in many such cases that it was or is a sprung defence, that is a recently made up, or improvised defence. It is not the truth or otherwise of the explanation which is the chief concern of the jury, it is the fact that it has not been mentioned previously which may in an appropriate case allow the jury to draw an inference that it is a recent invention, thus assisting the jury to its ultimate conclusion as to whether or not the explanation offered at trial is true or false. That is how the prosecution attempted to employ the provisions of this section at the trial of Hearne and it was in that context that the learned judge directed the jury as he did."

    We think the penultimate sentence of that passage calls for some qualification. If a matter is relied on at trial and was not mentioned during questioning, section 34 permits the inference to be drawn that the matter would have been mentioned during earlier questioning if true and, because not mentioned earlier, is unlikely to be true. But the jury is very much concerned with the truth or otherwise of any explanation given by the defendant of his reasons for not mentioning the matter during earlier questioning, since if the defendant gives any exculpatory explanation of his failure to mention it which the jury accept as true or possibly so, it would be obviously unfair to draw any inference adverse to him from his failure to mention it.

    30.  The appellant in R v Milford (Court of Appeal, 21 December 2000, unreported) was charged with three co-defendants with conspiring to import cannabis. He gave a largely no comment interview to the interviewing customs officer, but at the trial gave evidence to show that his contacts with his co-defendants, although admitted, were innocent. Since this account had not been given in interview, the judge gave a section 34 direction. It was submitted for the appellant (paragraph 30 of the judgment) that the mischief aimed at by the section was limited to facts given in evidence, which gave rise to an inference of recent invention: since the appellant did not challenge or put in issue the evidence of the prosecution as to a number of matters but merely accepted the facts, asserting an innocent explanation, they were not appropriately made the subject of a section 34 direction at all. Giving the judgment of the court, Potter LJ explained why that argument was rejected:

    "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 or 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.

    33.  The significance for the jury of a failure by the defendant when first questioned to mention facts relied on at his trial is whether or not that failure is an indication that the facts which he now adopts or advances before the jury (including any explanation for his involvement in undisputed but equivocal events) can or cannot be relied on. We share the apparent view of the authors of the most recent JSB direction that the adverse inference which may be drawn is not limited to one of 'recent invention' strictly so described, but extends to a fact or explanation tailored to fit the prosecution case or which the defendant believed would not stand up to scrutiny at the time."

    We would respectfully question whether the dictionary definition of fact is of assistance in interpreting this section, since, as already explained, the section only applies where the jury conclude that the "fact" relied on is untrue. Otherwise, we would endorse these observations.

    31.  In R v Chenia [2002] EWCA Crim 2345; [2003] 2 Cr App R 83 the Court of Appeal (Clarke LJ, Pitchford J and Judge Fabyan Evans) rejected the view (paragraph 24) that a defendant could only rely on a fact in his defence by adducing it in evidence by calling the defendant or another witness, but was not called upon to decide the present question. In paragraph 28 the court said:

    "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 s.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."

    Conclusion

    32.  Mr Shorrock QC for the appellant was, we think, right when he submitted that the present question has not arisen for decision in any earlier case. The authorities throw light on the problem but do not resolve it.

    33.  Since the object of section 34 is to bring the law back into line with common sense, we think it clear that "fact" should be given a broad and not a narrow or pedantic meaning. The word covers any alleged fact which is in issue and is put forward as part of the defence case: if the defendant advances at trial any pure fact or exculpatory explanation or account which, if it were true, he could reasonably have been expected to advance earlier, section 34 is potentially applicable. When directing the jury in this case the trial judge made repeated reference to "fact or matter", which is consistent with the reference to "something" in the caution and in our view expresses the meaning of the subsection.

    34.  We consider that a defendant relies on a fact or matter in his defence not only when he gives or adduces evidence of it but also when counsel, acting on his instructions, puts a specific and positive case to prosecution witnesses, as opposed to asking questions intended to probe or test the prosecution case. This is so whether or not the prosecution witness accepts the suggestion put. Two considerations in particular lead us to that conclusion:

    (1)  While it is of course true that questions put by counsel are not evidence and do not become so unless accepted by a witness, the effect of specific, positive suggestions put by counsel on behalf of a defendant is to plant in the jury's mind the defendant's version of events. This may be so even if the witness rejects the suggestion, since the jury may for whatever reason distrust the witness's evidence. The present case provides a very good example. As Mantell LJ pointed out in paragraph 5 of the judgment under appeal, Mitchell and Watson, like the appellant and Ashton, were members of rival criminal gangs. Very positive and specific suggestions were put to Mitchell and Watson concerning the third and most serious incident of the three. The jury may well have had reservations about the evidence of Mitchell and Watson, and may well have wondered whether the alternative version put for the appellant might not be true. Common sense would suggest that the jury should be free, when considering that possibility, to ask themselves whether, if the appellant's version were true, he would not have mentioned it earlier when he was questioned by the police.

    (2)  Since subsection (2)(c) of section 34 permits the court to draw proper inferences when determining whether there is a case to answer, the section may apply at a stage of the trial when the defendant has had no opportunity to give or adduce evidence, and when it will not be known (perhaps not even decided) whether the defendant will give or call evidence or not. But the court is likely to know, from questions put to prosecution witnesses, what (if any) positive case the defendant advances. It would be surprising if subsection (2)(c) were intended to apply only when, unusually, specific suggestions put to a prosecution witness are accepted by the witness.

    35.  Had subsection (1) been intended to apply only where evidence properly so called is given or adduced or elicited by a defendant, we would expect the draftsman to have made that clear by using the language of evidence. As it is, the words "relied on in his defence" suggest a wider import. It is true that subsection (3) (which had no counterpart in the Criminal Law Revision Committee's draft bill) does use the language of evidence, and the draftsman may well have envisaged that evidence would be given by a defendant, which section 35 was intended to encourage. But subsection (3) was directed to timing, not to the meaning of reliance.

    36.  We cannot accept that adoption of this interpretation will embarrass counsel or inhibit them in the performance of their professional duties. Mr Shorrock did not put forward any example of a situation in which there might be doubt whether counsel was putting a positive case or merely testing the prosecution evidence, and the example given by Mirfield (Silence, Confessions and Improperly Obtained Evidence, 1997, p.253) is not compelling. If counsel has no instructions to put a positive case he must confine himself to testing and probing the prosecution case. Paragraph 708 (e) of the Code of Conduct for the Bar of England and Wales provides that a barrister when conducting proceedings in court may not devise facts which will assist in advancing the lay client's case. Thus counsel may test the prosecution case by proffering alternative hypotheses, provided it is made plain that that is what they are, but may not put forward a positive case which he is not instructed to put. On the other hand, where counsel is instructed to put a positive case, there is a clear professional duty to put it to appropriate witnesses, and it should in any event have been disclosed in the defence statement before the trial: see Criminal Procedure and Investigations Act 1996, section 5; Practice Direction (Crown Court: Plea and Directions Hearings) [1995] 1 WLR 1318, paragraph 10(a); R v Tibbs [2000] 2 Cr App R 309, 314-315. Should a trial judge be in doubt whether counsel is testing the prosecution evidence or advancing a positive case, he should ask counsel (in the absence of the jury) to make his position clear, since it may well affect the direction which the judge will in due course give.

    37.  Where, as happened here in relation to the second incident, defending counsel adopts on behalf of his client in closing submissions evidence given by a co-defendant, it seems to us clear that the client is relying on that matter in his defence so as to render section 34 potentially applicable.

    38.  In the Court of Appeal, some criticism was made of the trial judge's failure to identify for the jury's consideration the specific matters which the appellant had failed to mention at interview. There is force in that criticism, and the need for such identification should be clearly understood. The Court of Appeal, however, concluded (paragraph 49) that "the jury was sufficiently informed about the specific matters which were to be contrasted with Webber's silence in interview", and the appellant's conviction is not rendered unsafe either by his failing in this regard or by the misdirection he was misled into giving in relation to the first incident.

    Recommendation

    39.  We would answer the certified question by saying that a positive suggestion put to a witness by or on behalf of a defendant may amount to a fact relied on in his defence for the purpose of section 34 of the Criminal Justice and Public Order Act 1994 even if that suggestion is not accepted by the witness. We would dismiss the appeal.

APPENDIX I

ORDERS OF REFERENCE, ETC.

WEDNESDAY 13 NOVEMBER 2002

Appellate Committees—Two Appellate Committees were appointed pursuant to Standing Order.

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THURSDAY 27 MARCH 2003

    Regina v. Webber (Appellant) (On Appeal from the Court of Appeal (Criminal Division))—The appeal of Robert Webber was presented and ordered to be prosecuted subject to the procedures applicable thereto.

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MONDAY 2 JUNE 2003

    Regina v. Webber (Appellant) (On Appeal from the Court of Appeal (Criminal Division))—The appeal was set down for hearing and referred to an Appellate Committee.

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WEDNESDAY 26 NOVEMBER 2003

    Appellate Committees—Two Appellate Committees were appointed pursuant to Standing Order.

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APPENDIX II

    MINUTES OF PROCEEDINGS

    WEDNESDAY 10 DECEMBER 2003

    Present:

L. Bingham of Cornhill
L. Slynn of Hadley
L. Hobhouse of Woodborough
L. Rodger of Earlsferry
L. Walker of Gestingthorpe
The Lord Bingham of Cornhill in the Chair.

    The Orders of Reference are read.

    The Committee deliberate.

    Counsel and Parties are called in.

      Mr M. Shorrock QC and Mr R. Denny appear for the appellant.

      Mr A. Jafferjee, Mrs S. Whitehouse and Miss C. Goodwin appear for the respondent.

    Mr Shorrock heard.

 
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