Neutral Citation Number: [2011] EWCA Crim 1098
Case No: 201100152 B2 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: TUESDAY, 5TH APRIL 2011
 
B e f o r e:

LORD JUSTICE TOULSON 

MR JUSTICE KEITH 
 
HIS HONOUR JUDGE BEVAN QC 
(SITTING AS A JUDGE OF THE CACD) 
 
R E G I N A 

v 

TROY NICHOLAS SMITH

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MISS R SADLER appeared on behalf of the Appellant 
MR A COX appeared on behalf of the Crown 
 
J U D G M E N T 

1.	LORD JUSTICE TOULSON:  This is an appeal against the appellant's conviction for attempted robbery at Lewes Crown Court on 15 December 2010.  Leave to appeal was given on the single ground that the judge wrongly gave a direction to the jury under section 34 of the Criminal Justice and Public Order Act 1994 that they could draw an adverse inference from the fact that the appellant gave a no comment police interview.  The terms of the Act are too familiar to require setting out in this judgment.  
2.	It is said that there were no grounds for drawing an adverse inference on the particular facts of this case, and that the prosecution had not sought to suggest that there were.  The appellant gave an explanation in his evidence for the no comment interview.  His explanation was that he acted on legal advice.  He was not cross‑examined about that explanation or asked any questions about the interview, and the prosecution did not at any stage of the trial seek to make anything of the point.  The judge gave his section 34 direction to the jury without inviting the parties' submissions or giving any prior indication of his intention.  It is submitted that in the circumstances the direction was wrong and the conviction is unsafe.
3.	The complainant, Aaron Harvey, was aged 18 at the time of the incident.  The appellant was aged 19.  There was a co‑accused, Gary Burgess, aged 26.  Both defendants were charged with attempted robbery.  Burgess was charged in a separate count with assaulting Harvey on the same occasion.  Burgess pleaded guilty to the charge of assault but not guilty to the charge of robbery.  Both defendants were convicted of attempted robbery; there has been no appeal by Burgess. 
4.	The case was simple.  On 7 June 2010 Harvey got off a train at Wivelsfield Station on his way home from work.  He was approached as he left the station by the two defendants.  The prosecution case was that Burgess asked him for money.  Harvey had no money on him and showed Burgess that he had none.  Burgess punched him in the face.  The prosecution alleged that the appellant assisted Burgess by standing between Harvey and his exit, and that the appellant also threatened to beat him.  
5.	According to Harvey's evidence in chief, all the actions and words came from Burgess.  His evidence that the appellant was more than a mere bystander emerged in answers to questions put by the judge in leading form after the conclusion of Harvey's cross‑examination.  During the cross‑examination, Harvey had agreed with the appellant's counsel that throughout the incident the appellant was leaning against a wall drinking cider and that Harvey's dealings were with Burgess.  In further questioning by the judge, Harvey agreed that the appellant had in fact made a threat to him, as he had asserted in his original witness statement, but had failed to say in chief.
6.	The incident ended oddly with Burgess asking Harvey for a hug.  They hugged and shook hands and then Harvey walked away.  Burgess' evidence was that he had not asked Harvey for money, but for a cigarette.  He did not like the way in which Harvey responded, and so he punched him for that reason, but afterwards they made peace.  
7.	The appellant in his evidence admitted being present, but said that he was merely a bystander.  He denied making threats.  He also supported Burgess' account of what passed between Harvey and Burgess, in particular that Burgess asked him for a cigarette and not for money.
8.	No reference was made to the appellant's police interview in his evidence in chief or in cross‑examination.  In re‑examination the appellant's counsel requested permission to ask the appellant why he had said 'no comment' in answer to the police.  Counsel for the prosecution was asked by the judge if he had any objection.  He had none.  The question was allowed to be put and the defendant said that he had acted on advice of the advice of his solicitor.  Counsel for the prosecution was then asked by the judge if he wished to ask any questions of the defendant, and he said no.
9.	We make no criticism of counsel for the prosecution in that respect.  Mr Cox, who appeared for the prosecution that day, as he appears now, has said, frankly, that he did not think that such questioning would be productive.  This was an entirely sensible approach.  It was a simple case in which the appellant's defence was a denial of being more than a bystander.  Whether or not that was true, there would be no mileage in seeking to suggest that this was some form of late concoction.  
10.	This court has in the past said that prosecutors should not complicate trials by invoking section 34 unless the nature of the case requires this to be done.  In Brizzalari [2004] EWCA Crim. 310 at paragraph 57, the court said:
"the mischief at which the provision was primarily directed was the positive defence following a "no comment" Interview and/or the "ambush" defence...  We would counsel against the further complicating of trials and summings up by invoking this statute unless the merits of the individual case require that that should be done."
We endorse those comments.  
11.	The judge gave an extended direction on section 34, the material points of which were as follows:
"Finally, before I sum up the facts for you, there is one area of the evidence that I have to tell you how to approach, and it is this.  When the defendant Troy Smith was interviewed he made no comment in interview.  Before his interview he was cautioned; that is he did not have to say anything and 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 that he later was to rely on in court and finally he was told that anything he did say might be given in evidence.  Now, as his defence, the defendant Troy Smith tells you, as we know, he was there.  He did in effect nothing at all, and therefore he had played no part in it.  But of course he did not say that when he was interviewed about the offence because he made no comment to the questions, and his failure to tell the police that at the time of his interview may count against him.  That is because you "may" draw the conclusion from his failure to give an explanation at the time that he had no answer then or none that he believed would stand up to scrutiny and that he has since invented that account or tailored it to either fit the prosecution or to tie in with the evidence of his co‑defendant..."
After setting out the conditions before an adverse inference could be drawn in accordance with the JSB standard form of direction.  He then went on:
"Now the defendant has told you that he did not answer questions on the advice of his solicitor.  If you accept his evidence that he was so advised, then it is obviously an important consideration, but it does not automatically prevent you from drawing any conclusion from his silence.  Bearing in mind that a person given legal advice has the choice to accept it or reject it, and he was warned that any failure to mention facts that we was to rely on at the trial might harm his defence.  So, consider whether he could reasonably have been expected to mention the facts on which he now relies, and if, for example, you consider that he did have or may have had an answer to give but genuinely relied on the legal advice to remain silent, then you should not draw any conclusion against him.  On the other hand, if you are satisfied that he remained silent not simply because of the legal advise but because he had no answer, or none that he thought would stand up to scrutiny, and that he merely latched onto the legal advise as a convenient shield behind which to hide, then you would be entitled to draw the conclusion against him, subject to what I have already said about it."
12.	Immediately after the conclusion of the summing up, in the absence of the jury, counsel for the appellant raised with the judge her concern that this direction had come without any prior warning to counsel.  The judge's response was:
"I cannot imagine that anything that you could have said could have dissuaded me from giving it, not least because if I did not give such a direction they might have used it for a wholly improper purpose."
13.	Counsel for the appellant pointed out to the judge that the appellant had not been cross‑examined on the basis which had been left to the jury as a possible foundation for drawing an adverse inference.  The judge was unimpressed by that point; he said that it was a point that the jury were bound to consider in any event.
14.	We consider that the judge was wrong to give the direction which he did.  His reasoning was that because the appellant had made no comment in his police interview but had gone on to give evidence, he was bound to give the jury a section 34 direction.  This was erroneous.  We agree that it was necessary for the judge to say something about the fact that he had remained silent in interview, as was his right, but it was incorrect to say that he had to give the direction which he gave.  
15.	Where such a direction is given, the judge needs to be clear what are the facts given in evidence but which the defendant failed to mention in interview in circumstances from which the jury may be entitled to infer guilt.  As mentioned, the facts identified by the judge as potentially giving rise to an adverse inference were that he was present at the time of the assault and that, on his account, he played no part in it.  
16.	That the appellant was present at the time of the assault was a true fact and agreed to be true at the trial.  Failure to mention something which is agreed to be true cannot, as a general proposition, give rise to an adverse inference:  R v Webber [2004] UKHL 1, [2004] Cr.App.R.(S.) 513.  To the extent, therefore, that the judge directed the jury that they could draw an adverse inference from his failure to admit in interview the fact that he had been present, this was a misdirection.  The other part of the facts which the judge identified, as facts relied on in the appellant's evidence which could give rise to an adverse inference, was his denial of taking part in the offence.  
17.	Where a defendant declines the opportunity to answer questions in interview and subsequently gives evidence, putting forward no more than a bare denial of an essential part of the prosecution's case, for the judge to give a direction to the jury that they can infer guilt from his failure to take the opportunity to advance such a denial earlier comes as close as makes no practical difference to directing the jury that they may infer guilt simply from the exercise of his right to silence.  That is not the purpose of section 34, as the court made clear in Brizzalari.  
18.	Mr Cox for the prosecution submitted that the appellant went further; he had positively supported Burgess' account about asking Harvey for a cigarette, not for money.  Mr Cox submitted that it was open to the jury to conclude from his silence in interview that this was a late concoction advanced when he knew the defence which Burgess was running.  
19.	There are, however, a number of problems about that argument.  First, in his interview the appellant was never asked any questions about what Burgess had said to the appellant; he was asked questions about what he himself said, but that is another matter.  Secondly, the suggestion that he and Burgess had put their heads together on this matter and that this was a late invention on the appellant's part was never put to the appellant in cross‑examination, and it would therefore have been unfair to put that suggestion to the jury.  Thirdly, even if the suggestion had been raised during the trial, it was not a matter which the judge himself identified in his direction as a fact mentioned in evidence which could give rise to an adverse inference.  So we come back to the "facts" that the judge did identify as matters which could be taken into account as giving rise to an adverse inference, those being the appellant's admitted presence at the scene, which was a true fact, and his bare denial of participation.
20.	The case illustrates yet again the need for the judge to discuss with counsel whether a section 34 direction is appropriate, and if so, what form it should take.  If the judge had given counsel the opportunity of making submissions in this case, they would no doubt have said that such a direction would be wrong, not only because no such suggestion had been advanced by the prosecution, but also because on analysis the facts identified by the judge in his direction could not properly give rise to an inference of guilt.  Mr Cox in his submissions ultimately conceded that the direction was a misdirection, and he was right to do so.  The judge ought to have directed the jury as a matter of law that they should not draw any adverse inference from the appellant's exercise of his right to silence. 
21.	There remains the question whether the misdirection renders the conviction unsafe.  Mr Cox submitted that it did not.  He argued that the jury must have rejected the evidence of Burgess and the appellant about Burgess asking for a cigarette rather than money.  This was not dependent on drawing any adverse inference.  Accordingly, the jury must have found the appellant's evidence on that matter to be false and therefore his conviction for participating in the robbery is safe.
22.	We reject that argument, principally for two reasons.  First, it is undoubtedly right this the jury must have concluded that the story about Burgess asking for a cigarette, not money was untrue and that Burgess had indeed used violence in support of the demand for money.  But to have directed the jury that if rejected that story, and found Burgess guilty, they should find the appellant also guilty, would have been a clear misdirection.  Proof that the appellant supported Burgess in his untruthful defence was not in itself proof that the appellant was guilty as an aider and abettor, although it was relevant to his credibility.  
23.	Secondly, and more fundamentally, this court has no way of knowing what influence the judge's direction on inference of guilt from the appellant's "no comment" interview may have had in the mind of the jury.  As already mentioned, the incrimination of the appellant by the complainant came at a late stage in his evidence after he had not incriminated the claimant in the course of his evidence in chief and after he had given helpful answers to the appellant's counsel in cross‑examination.  It is not a case where the evidence was so overwhelming that notwithstanding a serious misdirection we can be confident that the conviction is safe.  
24.	For those reasons this appeal must be allowed and the conviction quashed.